Federal Register of Legislation - Australian Government

Primary content

Defence Trade Controls Regulation 2013

Authoritative Version
  • - F2013L00902
  • In force - Superseded Version
  • View Series
SLI 2013 No. 93 Regulations as made
This regulation prescribes a number of requirements set out in the Act in relation to certain things applicable to a member of the Australian Community under section 4 of the Act that the offences for the supply of DSGL technology under section 10 of the Act do not apply to certain persons etc.
Administered by: Defence
Exempt from sunsetting by the Legislation (Exemptions and Other Matters) Regulation 2015 s11 item 01
Made 30 May 2013
Registered 03 Jun 2013
Tabled HR 05 Jun 2013
Tabled Senate 17 Jun 2013

Commonwealth Coat of Arms

 

 

Defence Trade Controls Regulation 2013

 

Select Legislative Instrument No. 93, 2013

I, Professor Marie Bashir AC CVO, Administrator of the Government of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulation under the Defence Trade Controls Act 2012.

Dated 30 May 2013

Marie Bashir

Administrator

By Her Excellency’s Command

Stephen Smith

Minister for Defence

 

  

  

  


Contents

Part 1—Preliminary                                                                                                             1

1............ Name of regulation.............................................................................. 1

2............ Commencement................................................................................... 1

3............ Authority............................................................................................. 2

4............ Definitions.......................................................................................... 2

5............ Australian Community member—requirements to be satisfied........... 3

Part 2—Dealings in items on the Defence and Strategic Goods List      5

6............ Exception to offence—licence or permission...................................... 5

7............ Exception to offence—Australian Defence Article.............................. 5

8............ Issue of permits—criteria to which the Minister must have regard..... 6

Part 3—Defense Trade Cooperation Treaty                                                         8

Division 1—Approval conditions: US Defence Articles                             8

9............ Approval conditions—access to US Defence Articles........................ 8

10.......... Approval conditions—loss, theft or destruction of US Defence Articles 8

11.......... Approval conditions—marking of US Defence Articles or technology 9

12.......... Approval conditions—marking for defence services relating to US Defence Article               11

13.......... Approval conditions—marking for defence services relating to technology             11

Division 2—Approval conditions: Australian Defence Articles           13

14.......... Approval conditions for dealing with Australian Defence Articles... 13

15.......... Approval conditions—marking of Australian Defence Articles or technology        13

16.......... Approval conditions—marking for defence services relating to Australian Defence Articles  14

17.......... Approval conditions—marking for defence services relating to technology             15

Division 3—Approval condition: annual compliance report                 16

18.......... Annual compliance report................................................................. 16

Division 4—Exceptions to treaty offences                                                       17

Subdivision A—Exceptions to main offence                                                     17

19.......... Supply of goods, technology relating to goods or defence services.. 17

Subdivision B—Approval of intermediate consignees                                   18

20.......... Application for approval................................................................... 18

21.......... Cancellation of approval.................................................................... 19

22.......... Review of decisions.......................................................................... 20

Part 4—Monitoring powers                                                                                           22

23.......... Identity cards..................................................................................... 22

Part 6—Record‑keeping                                                                                                  23

Division 1—Permit‑holders under Part 2 of the Act                                  23

24.......... Section 11 permit holders—information to be contained in records.. 23

25.......... Registered brokers—information to be contained in records............. 23

Division 2—Approval‑holders under section 27 of the Act                    25

26.......... Activities for which records must be kept......................................... 25

27.......... Information to be contained in records.............................................. 25

Part 8—Other matters                                                                                                       27

Division 1—Notices, permits or approvals                                                     27

28.......... Notices, permits or approvals—service and receipt........................... 27

Division 2—Forfeiture                                                                                               29

29.......... Storage of seized goods etc............................................................... 29

30.......... Destruction of condemned goods etc................................................ 29

31.......... Dealing with condemned goods etc................................................... 30

32.......... Storage of condemned goods etc....................................................... 30


Part 1Preliminary

  

1  Name of regulation

                   This regulation is the Defence Trade Controls Regulation 2013.

2  Commencement

                   Each provision of this regulation 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.  Part 1 and anything in this Act not elsewhere covered by this table

At the same time as section 27 of the Defence Trade Controls Act 2012 commences.

 

2.  Sections 6 and 7

At the same time as section 10 of the Defence Trade Controls Act 2012 commences.

 

3.  Section 8

At the same time as section 11 of the Defence Trade Controls Act 2012 commences.

 

4.  Parts 3 and 4

At the same time as section 27 of the Defence Trade Controls Act 2012 commences.

 

5.  Part 6, Division 1

At the same time as section 11 of the Defence Trade Controls Act 2012 commences.

 

6.  Part 6, Division 2

At the same time as section 27 of the Defence Trade Controls Act 2012 commences.

 

7.  Part 8

At the same time as section 27 of the Defence Trade Controls Act 2012 commences.

 

3  Authority

                   This regulation is made under the Defence Trade Controls Act 2012.

4  Definitions

                   In this regulation:

Act means the Defence Trade Controls Act 2012.

Australian Defence Article means goods to which the following apply:

                     (a)  the goods have been designed, developed, produced, manufactured or assembled in Australia;

                     (b)  the goods have been, or are being, supplied by an Australian Community member in Australia to a member of the United States Community for an activity referred to in Article 3(1)(a), (b), (c) or (d) of the Defense Trade Cooperation Treaty;

                     (c)  the goods are listed in Part 1 of the Defense Trade Cooperation Munitions List immediately before a supply mentioned in paragraph (b);

                     (d)  the goods are not listed in Part 2 of the Defense Trade Cooperation Munitions List immediately before a supply mentioned in paragraph (b);

                     (e)  the goods are not an Article 3(1) US Defence Article or an Article 3(3) US Defence Article;

                      (f)  immediately before a supply mentioned in paragraph (b), the export of the goods from Australia is not limited by a foreign export licence or a foreign export authorisation to which the goods are subject.

intermediate consignee means an entity that is:

                     (a)  a freight forwarder; or

                     (b)  a customs broker; or

                     (c)  a commercial air, land or sea freight carrier or transport provider;

and includes an entity that acts in that capacity as the agent of another entity.

Note:          The following words and expressions used in this regulation have the meaning given by subsection 4(1) of the Act:

(a)    Article 3(1) US Defence Article;

(b)    Article 3(3) US Defence Article;

(c)    Australian Community member;

(d)    defence services;

(e)    Defense Trade Cooperation Munitions List;

(f)    Defense Trade Cooperation Treaty;

(g)    DSGL technology;

(h)    foreign person;

(i)     goods;

(j)     Implementing Arrangements;

(k)    member of the United States Community;

(l)     original goods;

(m)   registered broker;

(n)    supply;

(o)    technology.

5  Australian Community member—requirements to be satisfied

             (1)  For subparagraph (c)(ii) of the definition of Australian Community member in subsection 4(1) of the Act, this section sets out the requirements which a person must satisfy.

Citizenship requirement

             (2)  The person must be an Australian citizen.

             (3)  However, subsection (2) does not apply if the Commonwealth Government and the Government of the United States of America have agreed to waive the requirement for the person.

Security clearance requirement

             (4)  The person must hold a security clearance:

                     (a)  issued by the Commonwealth Government on or after 1 October 2010; or

                     (b)  issued by the Commonwealth Government before 1 October 2010 at a level other than “restricted”.

             (5)  The security clearance must be current.

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

  

6  Exception to offence—licence or permission

                   For subsection 10(4) of the Act, a circumstance in which subsection 10(1) of the Act does not apply is that:

                     (a)  a person (the supplier) supplies DSGL technology in the circumstances mentioned in that subsection; and

                     (b)  the supplier holds a valid licence or permission under regulation 13E of the Customs (Prohibited Exports) Regulations 1958; and

                     (c)  the licence or permission allows the supply of that technology in those circumstances; and

                     (d)  the supplier complies with the licence or permission.

Note:          Subsection 10(1) of the Act sets out an offence about supplies relating to the Defence and Strategic Goods List.

7  Exception to offence—Australian Defence Article

                   For subsection 10(4) of the Act, a circumstance in which subsection 10(1) of the Act does not apply is that:

                     (a)  the supply of DSGL technology as mentioned in that subsection:

                              (i)  is by an Australian Community member to a member of the United States Community; or

                             (ii)  is by a member of the United States Community to another member of the United States Community; and

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

                     (c)  at the time of the supply, the goods in relation to which DSGL technology is being supplied are an Australian Defence Article.

Note:          Australian Defence Article is defined in section 4.

8  Issue of permits—criteria to which the Minister must have regard

                   For subsections 11(4) and 16(4) of the Act, the table sets out the criteria to which the Minister must have regard for the purpose of:

                     (a)  giving a permit for a specified supply; or

                     (b)  giving a permit for a specified arrangement.

 

Criteria for permits

Item

Criteria

1

The risk that the DSGL technology or the goods may go to a country upon which the Security Council of the United Nations has imposed a sanction restricting the sale, supply or transfer of technology or goods

2

The risk that the DSGL technology or the goods may go to a country where it may be used in a way contrary to Australia’s international obligations or commitments

3

The risk that the DSGL technology or the goods may be used to commit or facilitate serious abuses of human rights

4

Whether the supply of the DSGL technology or the goods:

(a) may aggravate:

(i) an existing threat to international peace and security or to the peace and security of a region; or

(ii) a particular event or conflict of concern to Australia; or

(b) may otherwise contribute to political instability internationally or in a particular region

5

Whether the DSGL technology or the goods will:

(a) be used for conflict within the destination country or international conflict by the destination country; or

(b) further militarise conflict within the destination country

6

Whether the supply of the DSGL technology or the goods will compromise or adversely affect Australia’s defence or security interests, its obligations to its allies and countries with which it maintains good diplomatic relations, and its international obligations and responsibilities

7

Whether the DSGL technology or the goods may go to a country that has policies or strategic interests inimical to the policies and strategic interests of Australia, its allies, or countries with which Australia maintains good diplomatic relations

8

The risk that the supply or use of the DSGL technology or the goods will:

(a) adversely affect Australia’s military capability; or

(b) substantially compromise an Australian defence operation; or

(c) increase the military capability of a country that is a potential adversary of Australia

9

The risk that the DSGL technology or the goods may go to a country:

(a) that is, or is reasonably suspected of, developing:

(i) weapons that may be capable of causing mass destruction; or

(ii) the means of delivering them; or

(b) that supports, or is reasonably suspected of supporting, terrorism; or

(c) whose actions or foreign policies pose a risk of major disruption in global stability or the stability of a particular region

10

Whether the supply of the DSGL technology or the goods to a country will lead to a reaction by another country that may damage Australia’s interests or relations with the other country or with a particular region

11

Whether the DSGL technology or the goods may be used for mercenary activities or a terrorist or other criminal activity

Part 3Defense Trade Cooperation Treaty

Division 1Approval conditions: US Defence Articles

9  Approval conditions—access to US Defence Articles

             (1)  For paragraph 28(1)(c) of the Act, this section sets out conditions to which an approval given under section 27 of the Act is subject.

Note:          Section 27 of the Act deals with the approval of persons as members of the Australian Community.

             (2)  The holder must not give an employee or a contractor access to an Article 3(1) US Defence Article or an Article 3(3) US Defence Article that is in the holder’s possession, custody or control unless the employee or contractor is an Australian Community member.

             (3)  The holder must require an employee or contractor to whom the holder gives access to US Defence Articles in the holder’s possession, custody or control, to comply with:

                     (a)  the conditions to which the holder’s approval is subject under sections 11 to 17; and

                     (b)  any other conditions to which the approval is subject.

10  Approval conditions—loss, theft or destruction of US Defence Articles

             (1)  For paragraph 28(1)(d) of the Act, this section sets out conditions to which an approval given under section 27 of the Act is subject.

Note:          Section 27 of the Act deals with the approval of persons as members of the Australian Community.

             (2)  If an Article 3(1) US Defence Article or Article 3(3) US Defence Article is lost, stolen or destroyed while it is in the possession, custody or control of the holder of the approval, the holder must notify the Secretary within 48 hours of identifying the loss, theft or destruction.

             (3)  The notification must include:

                     (a)  a description of the US Defence Article; and

                     (b)  where applicable, the quantity, and the weight, volume or mass, of the US Defence Article; and

                     (c)  the security classification given to the US Defence Article; and

                     (d)  information about any other identifying markings on the item (for example, serial numbers); and

                     (e)  the estimated date and time of the loss, theft or destruction; and

                      (f)  the circumstances of the loss, theft or destruction; and

                     (g)  information about any known risks, or risks perceived by the holder, to the public, the environment or the national interest posed by the US Defence Article itself or its loss, theft or destruction; and

                     (h)  any other information about the loss, theft or destruction that the holder thinks may be relevant.

11  Approval conditions—marking of US Defence Articles or technology

             (1)  For paragraph 28(1)(e) of the Act, this section sets out conditions to which an approval given under section 27 of the Act is subject.

Note:          Section 27 of the Act deals with the approval of persons as members of the Australian Community.

Marking for goods

             (2)  If an Article 3(1) US Defence Article or Article 3(3) US Defence Article in the holder’s possession, custody or control does not have a security classification, the holder of the approval must ensure it is marked:

“//RESTRICTED USML//REL AUS and USA Treaty Community//”.

             (3)  If the US Defence Article has a security classification, the holder of the approval must ensure it is marked:

“//[CLASSIFICATION] USML//REL AUS and USA Treaty Community//”;

where “[CLASSIFICATION]” means the security classification level assigned to the US Defence Article.

             (4)  If the US Defence Article has a marking that the holder reasonably believes is incorrect, the holder must:

                     (a)  notify the Secretary about the incorrect marking; and

                     (b)  correct, or obliterate and replace, the marking.

             (5)  If it is not practicable to mark a particular US Defence Article:

                     (a)  the US Defence Article must be accompanied by documentation that includes the marking; and

                     (b)  that marking must be clearly visible in the documentation.

Marking for technology

             (6)  If an item of technology relating to original goods in the holder’s possession, custody or control does not have a security classification, the holder must ensure it is marked:

“//RESTRICTED USML//REL AUS and USA Treaty Community//”.

             (7)  If the item of technology has a security classification, the holder of the approval must ensure it is marked:

“//[CLASSIFICATION] USML//REL AUS and USA Treaty Community//”;

where “[CLASSIFICATION]” means the security classification level assigned to the technology.

             (8)  If the technology has a marking that the holder reasonably believes is incorrect, the holder must:

                     (a)  notify the Secretary about the incorrect marking; and

                     (b)  correct, or obliterate and replace, the marking.

             (9)  If it is not practicable to mark each individual item of technology:

                     (a)  the item must be accompanied by documentation that includes the marking; and

                     (b)  the marking must be clearly visible.

           (10)  For this section, examples of documentation are contracts, invoices, shipping bills and bills of lading.

12  Approval conditions—marking for defence services relating to US Defence Article

             (1)  For subparagraph 28(1)(f)(i) of the Act, this section:

                     (a)  sets out conditions to which an approval given under section 27 of the Act is subject; and

                     (b)  applies to the holder of an approval who provides defence services in relation to goods that are an Article 3(1) US Defence Article or an Article 3(3) US Defence Article.

Note:          Section 27 of this Act deals with the approval of persons as members of the Australian Community.

             (2)  If the US Defence Article does not have a security classification, the holder must ensure that the documentation accompanying the defence services identifies the Article by including the marking:

“//RESTRICTED USML//REL AUS and USA Treaty Community//”.

             (3)  If the US Defence Article has a security classification, the holder must ensure the accompanying documentation includes a marking for it as follows:

“//[CLASSIFICATION] USML//REL AUS and USA Treaty Community//”;

where “[CLASSIFICATION]” means the security classification level assigned to US Defence Article.

             (4)  If the accompanying documentation has a marking for a US Defence Article that the holder reasonably believes is incorrect, the holder must:

                     (a)  notify the Secretary about the incorrect marking; and

                     (b)  correct, or obliterate and replace, the marking.

             (5)  If the holder provides a defence service orally, the holder must also tell the recipients, at the time providing the service, what marking has been given to the US Defence Article.

13  Approval conditions—marking for defence services relating to technology

             (1)  For subparagraph 28(1)(f)(ii) of the Act, this section:

                     (a)  sets out conditions to which an approval given under section 27 of the Act is subject; and

                     (b)  applies to the holder of an approval who provides defence services in relation to technology relating to original goods.

Note:          Section 27 of the Act deals with the approval of persons as members of the Australian Community.

             (2)  If the technology or the original goods do not have a security classification, the holder must ensure that the documentation accompanying the defence services identifies the technology and the goods by including in the documentation the marking:

“//RESTRICTED USML//REL AUS and USA Treaty Community//”.

             (3)  If the technology or the original goods have a security classification, the holder must ensure the accompanying documentation includes the following marking for the technology or the goods:

“//[CLASSIFICATION] USML//REL AUS and USA Treaty Community//”;

where “[CLASSIFICATION]” means the security classification level assigned to the technology or the original goods.

             (4)  If the technology or the goods have a marking that the holder reasonably believes is incorrect, the holder must:

                     (a)  notify the Secretary about the incorrect marking; and

                     (b)  correct, or obliterate and replace, the marking.

             (5)  If the holder provides a defence service orally, the holder must also tell the recipients, at the time of providing the service, what marking has been given to the technology and the original goods.

Division 2Approval conditions: Australian Defence Articles

14  Approval conditions for dealing with Australian Defence Articles

                   For paragraph 28(1)(h) of the Act, this Division sets out conditions to which an approval given under section 27 of the Act is subject.

Note:          Section 27 of the Act deals with the approval of persons as members of the Australian Community.

15  Approval conditions—marking of Australian Defence Articles or technology

Marking for goods

             (1)  If an Australian Defence Article in the possession, custody or control of the holder of an approval does not have a security classification, the holder must ensure it is marked:

“//AUSTRALIAN UNCLASSIFIED USML//REL AUS and USA Treaty Community//”.

             (2)  If the Australian Defence Article has a security classification, the holder must ensure it is marked:

“//AUSTRALIAN [CLASSIFICATION LEVEL] USML //REL AUS and USA Treaty Community//”;

where “[CLASSIFICATION LEVEL]” means the security classification assigned to the Article.

             (3)  If it is not practicable to mark a particular Article:

                     (a)  the Article must be accompanied by documentation that includes the marking; and

                     (b)  that marking must be clearly visible in the documentation.

Marking for technology

             (4)  If technology relating to an Australian Defence Article in the possession, custody or control of the holder of an approval does not have a security classification, the holder must ensure it is marked:

“//AUSTRALIAN UNCLASSIFIED USML//REL AUS and USA Treaty Community//”.

             (5)  If the technology has a security classification, the holder of the approval must ensure it is marked:

“//AUSTRALIAN [CLASSIFICATION LEVEL] USML //REL AUS and USA Treaty Community//”;

where “[CLASSIFICATION LEVEL]” means the security classification assigned to the Article.

             (6)  If it is not practicable to mark each individual item of technology:

                     (a)  the item must be accompanied by documentation that includes the marking; and

                     (b)  that marking must be clearly visible.

             (7)  For this section, examples of documentation are contracts, invoices, shipping bills and bills of lading.

16  Approval conditions—marking for defence services relating to Australian Defence Articles

             (1)  This section applies to the holder of an approval who provides defence services relating to an Australian Defence Article.

             (2)  If the Australian Defence Article does not have a security classification, the holder must ensure that the documentation accompanying the defence services identifies the Article by including the marking:

“//AUSTRALIAN UNCLASSIFIED USML//REL AUS and USA Treaty Community//”.

             (3)  If the Australian Defence Article has a security classification, the holder must ensure the accompanying documentation includes a marking for it as follows:

“//AUSTRALIAN [CLASSIFICATION LEVEL] USML //REL AUS and USA Treaty Community//”;

where “[CLASSIFICATION LEVEL” means the security classification assigned to the Article.

             (4)  If the holder provides a defence service orally, the holder must also tell the recipients, at the time of providing the service, what marking has been given to the Australian Defence Article.

17  Approval conditions—marking for defence services relating to technology

             (1)  This section applies to the holder of an approval who provides defence services in relation to technology relating to an Australian Defence Article.

             (2)  If the technology or the Australian Defence Article does not have a security classification, the holder must ensure that the documentation accompanying the defence services identifies:

                     (a)  the technology; or

                     (b)  the Australian Defence Article;

by including the marking:

“//AUSTRALIAN UNCLASSIFIED USML//REL AUS and USA Treaty Community//” for the technology of the Article.

             (3)  If the technology or the Australian Defence Article has a security classification, the holder must ensure that the accompanying documentation includes a marking for the technology or the Article as follows:

“//AUSTRALIAN [CLASSIFICATION LEVEL] USML //REL AUS and USA Treaty Community//”;

where “[CLASSIFICATION LEVEL]” means the security classification assigned to the Article.

             (4)  If the holder provides a defence service orally, the holder must also tell the recipients, at the time of providing the service, what marking has been given to the technology and the Australian Defence Article.

Division 3Approval condition: annual compliance report

18  Annual compliance report

             (1)  For paragraph 28(1)(g) of the Act, the holder of an approval under section 27 of the Act must give to the Minister, within 30 days after the end of each financial year, a report in relation to the approval holder’s compliance, during that year, with:

                     (a)  the approval conditions under the Act and this regulation; and

                     (b)  the provisions of the Act and this regulation.

             (2)  The report must be made in the form approved for this section by the Secretary.

Division 4Exceptions to treaty offences

Subdivision AExceptions to main offence

19  Supply of goods, technology relating to goods or defence services

             (1)  For subsection 31(7) of the Act, this section sets out circumstances in which an offence in subsection 31(1), (2), (3), (4), (5) or (6) of the Act does not apply.

Note:          Subsections 31(1) to (6) of the Act set out offences relating to dealings with goods, or dealings in relation to goods, that are Article 3(1) US Defence Articles or Article 3(3) US Defence Articles.

             (2)  A circumstance in relation to the application of each of those subsections is that:

                     (a)  an Australian Community member (the supplier) supplies goods, technology or defence services in the circumstances mentioned in the relevant subsection; and

                     (b)  the supplier holds a valid licence or other authorisation granted by the Government of the United States of America that permits the supplier to make the supply in those circumstances.

             (3)  A circumstance in relation to the application of subsection 31(3) of the Act is that the receiver of a supply mentioned in that subsection is an intermediate consignee who:

                     (a)  is approved by the Minister under Subdivision B; and

                     (b)  is engaged by the Australian Community member (the supplier) to receive an Article 3(1) US Defence Article or an Article 3(3) US Defence Article for the purpose only of transporting the US Defence Article to:

                              (i)  the Commonwealth; or

                             (ii)  another Australian Community member; or

                            (iii)  an Australian Community facility; or

                            (iv)  a member of the United States Community.

Note:          Information and names of approved intermediate consignees is available on the Department’s website at www.defence.gov.au/ustradetreaty.

Subdivision BApproval of intermediate consignees

20  Application for approval

             (1)  A person may apply to the Minister for approval as an approved intermediate consignee.

             (2)  The application must:

                     (a)  be in the form approved, in writing, for this section by the Minister; and

                     (b)  contain the information required by the form; and

                     (c)  be accompanied by the documents (if any) that the form requires.

             (3)  In deciding whether to approve the person, the Minister must have regard to the following:

                     (a)  whether the primary business of the person is as an intermediate consignee;

                     (b)  whether the person has a tracking system in place that the Minister is satisfied would meet the requirements of subsection (4).

             (4)  For paragraph (3)(b), the requirements are that the tracking system is able to:

                     (a)  identify the location of an article that is in the possession, custody or control of the person; and

                     (b)  record the date and the time the article is received by the person; and

                     (c)  record the date and the time the person delivers the article to another person; and

                     (d)  identify the person to whom the article is delivered; and

                     (e)  record the place at which the article is delivered.

             (5)  The Minister must not approve the person as an approved intermediate consignee unless the Minister is satisfied that the Government of the United States of America has agreed in writing to the approval being given.

             (6)  The Minister must:

                     (a)  as soon as practicable after making a decision on the person’s application, notify the person, in writing, of the decision; and

                     (b)  if the Minister refuses to approve a person as an approved intermediate consignee:

                              (i)  include the reasons for the decision unless disclosing the reasons would prejudice the security, defence or international relations of Australia; and

                             (ii)  if the reasons cannot be disclosed for the reason mentioned in subparagraph (i)—state that fact.

             (7)  An approval is subject to:

                     (a)  a condition that the intermediate consignee’s tracking system continues to meet the requirements of subsection (4); and

                     (b)  any other conditions specified in the approval.

21  Cancellation of approval

             (1)  The Minister may, by writing, cancel a person’s approval as an approved intermediate consignee:

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

                     (b)  if the Minister is satisfied that the person’s application contained information that was false or misleading; or

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

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

             (2)  The Minister must give the person notice of the cancellation and the reasons for the cancellation.

             (3)  The cancellation takes effect at the time the person receives the notice.

22  Review of decisions

Internal review

             (1)  A person may request the Minister, in writing, to review:

                     (a)  a decision made under subsection 20(6) to refuse to approve a person as an approved intermediate consignee; or

                     (b)  a decision made under subsection 21(1) to cancel an approval.

             (2)  The request must be made within 30 days after the day on which the person is notified of the decision.

             (3)  The request must set out the reasons it is made.

             (4)  The Minister must review the decision:

                     (a)  personally; and

                     (b)  as soon as practicable after receiving the request.

             (5)  The Minister may:

                     (a)  affirm, vary or revoke the decision; and

                     (b)  if the Minister revokes the decision, make such other decision as the Minister thinks appropriate.

             (6)  The Minister must notify the person, in writing, within 30 days after receiving a request, of:

                     (a)  the decision under subsection (5); and

                     (b)  the reasons for that decision, unless disclosing the reasons would prejudice the security, defence or international relations of Australia; and

                     (c)  if, under paragraph (b), the reasons cannot be disclosed—the fact that the reasons cannot be disclosed; and

                     (d)  the person’s right to have that decision reviewed by the Administrative Appeals Tribunal.

             (7)  The Minister is taken to have affirmed the decision mentioned in subsection (4) if the person does not receive notice of the Minister’s decision on the review of that decision within 90 days after the person requested the Minister to review the decision.

Review by the Administrative Appeals Tribunal

             (8)  Applications may be made to the Administrative Appeals Tribunal for review of:

                     (a)  a decision made by the Minister under subsection (5); or

                     (b)  a decision made by the Minister personally under subsection 20(6) or 21(1).

Part 4Monitoring powers

  

23  Identity cards

                   For section 40 of the Act, an identity card must be in a form that contains the following:

                     (a)  the full name of the authorised officer;

                     (b)  the signature of the authorised officer;

                     (c)  the words “authorised officer for the purposes of the Defence Trade Controls Act 2012”;

                     (d)  a statement that the card is issued by the Secretary under section 40 of the Act;

                     (e)  the date the card was issued.

Note:          Paragraph 40(2)(c) of the Act provides that an identity card issued to a person must contain a recent photograph of the person.

Part 6Record‑keeping

Division 1Permit‑holders under Part 2 of the Act

24  Section 11 permit holders—information to be contained in records

                   For subsection 58(4) of the Act, the table sets out information that must be contained in the record of supplies made under a permit a person holds under section 11 of the Act.

 

Information to be contained in records of supplies

Item

Information

1

A description of the DSGL technology supplied under the permit

2

The unique identifier given to the permit under which the permit holder supplied DSGL technology

3

The name of any person to whom the permit holder supplied DSGL technology under the permit

4

For each supply of DSGL technology under the permit:

(a) the date of the supply; or

(b) if the permit covers the supply for a period of time—the period, or periods, of time during which the permit holder supplied the DSGL technology

 

25  Registered brokers—information to be contained in records

                   For subsection 58(4) of the Act, the table sets out the information that must be contained in the record of arrangements made by a registered broker under a permit the broker holds under section 16 of the Act.

 

Information to be contained in records of arrangements

Item

Information

1

A description of the goods or DSGL technology the registered broker arranges to be supplied under the permit

2

The unique identifier given to the permit under which the registered broker arranged a supply

3

The name of any person the registered broker arranges to supply goods or DSGL technology, and the place from which the goods or DSGL technology will be supplied

4

The date any arrangement under the permit is made

5

The name of any person that the registered broker arranges will be supplied goods or DSGL technology under the permit, and the place at which the goods or DSGL technology are to be received by that person

Division 2Approval‑holders under section 27 of the Act

26  Activities for which records must be kept

                   For subsection 58(3) of the Act, the table sets out activities done by the holder of an approval under section 27 of the Act for which records must be kept under that subsection.

 

Activities for which records must be kept

Item

Activities

1

The supply of goods or technology relating to goods that are an Article 3(1) US Defence Article or an Article 3(3) US Defence Article

2

The provision of defence services in relation to goods that are an Article 3(1) US Defence Article or an Article 3(3) US Defence Article

3

The provision of defence services in relation to technology relating to goods that are an Article 3(1) US Defence Article or an Article 3(3) US Defence Article

4

Any action the person takes under a notice issued to the person by the Minister under subsection 33(4) of the Act

5

The supply of goods or technology, or provision of defence services, that is specified in a notice given by the Minister under subsection 33(7) of the Act

6

The supply of goods or technology relating to goods that are an Australian Defence Article

7

The provision of defence services in relation to goods that are an Australian Defence Article

8

The provision of defence services in relation to technology relating to goods that are an Australian Defence Article

 

27  Information to be contained in records

                   For subsection 58(4) of the Act, the table sets out information that must be contained in the record of an activity mentioned in the table in section 26.

 

Information to be contained in records

Item

Information

1

A description of the goods or technology supplied, or the defence services provided

2

The unique identifier given to the authorisation under which the person does the activity

3

The date and time at which, and the place from which, goods or technology were supplied, or defence services were provided

4

The name of any intermediate consignee who receives goods or technology from the holder of an approval under section 27 of the Act, and the date the goods or technology were supplied to the intermediate consignee

5

The name of the person to whom a supply of goods, technology or defence services was supplied, the time and date of the supply and the place at which the supply was received by that person

6

If the activity involves the electronic transfer of technology or defence services, details sufficient to identify the transfer

7

The marking applied to an Article 3(1) US Defence Article or an Article 3(3) US Defence Article supplied by the person, or that is included in the accompanying documentation

8

The marking applied to an item of technology provided by the person, or that is included in the accompanying documentation

9

The marking given to a defence service, included in accompanying documentation

10

The marking applied to an Australian Defence Article supplied by the person, or that is included in the accompanying documentation

Note:          Markings for US Defence Articles or related technology are provided for as a condition of an approval under section 27 of the Act: see section 11.

Part 8Other matters

Division 1Notices, permits or approvals

28  Notices, permits or approvals—service and receipt

             (1)  For subsections 67(1) and (2) of the Act, this section sets out:

                     (a)  methods for giving a notice, permit or approval to a person; and

                     (b)  the time at which the person is taken to have received a notice, permit or approval given using the method.

Given personally

             (2)  The notice, permit or approval may be given to the person:

                     (a)  at the last address notified to the Minister for the purpose of receiving notices, permits and approvals; and

                     (b)  by a person authorised by the Minister for this subsection; and

                     (c)  either:

                              (i)  by giving it to the person; or

                             (ii)  by giving it to a person who appears to work at that address in a management or executive position.

             (3)  The person is taken to have received the notice, permit or approval under subsection (2) at the time at which it is given to the person.

Sent by mail

             (4)  The notice, permit or approval may be posted to the person at the postal address last notified to the Minister for the purpose of receiving notices, permits and approvals.

             (5)  The person is taken to have received the notice, permit or approval under subsection (4):

                     (a)  if the notice, permit or approval was posted from a place in Australia to an address in Australia—7 business days after the date of the notice, permit or approval, in the place of the address to which it was sent; or

                     (b)  if paragraph (a) does not apply—21 days after the date of the notice, permit or approval, in the place of the address to which it was sent.

Faxed, emailed or sent by other electronic means

             (6)  If the person has notified to the Minister a fax number, email address or other electronic address, for the purpose of receiving notices, permits and approvals, the notice, permit or approval may be:

                     (a)  faxed to the person at the fax number last notified to the Minister for that purpose; or

                     (b)  sent to the person at the email address last notified to the Minister for that purpose; or

                     (c)  sent to the person by any other electronic means to the electronic address last notified to the Minister for that purpose.

             (7)  The person is taken to have received the notice, permit or approval under subsection (6) at the end of the day (in the person’s location) that it was sent or, if that day is not a business day, at the end of the next following business day.

Division 2Forfeiture

29  Storage of seized goods etc

             (1)  For subsection 71(7) of the Act, seized goods, technology, or things must be stored securely at a place approved, in writing, by the Minister for that purpose.

             (2)  In approving a place for the storage of a kind of goods, technology or thing, the Minister must have regard to:

                     (a)  the nature of goods, technology or things of that kind; and

                     (b)  the suitability of that place for storing securely goods, technology or things of that kind; and

                     (c)  the need to preserve the conditions and value of the goods, technology or thing as far as is practicable.

30  Destruction of condemned goods etc

             (1)  For subsection 71(8) of the Act, if the Minister is satisfied that condemned goods, technology or things can safely be destroyed, they must be destroyed, to the satisfaction of the Minister, at a place, and in a way, suitable for safely destroying goods, technology or things of that kind.

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

                     (a)  an approval applies to the condemned goods, technology or things under subsection 31(2); and

                     (b)  the condemned goods, technology or things are sold in accordance with the approval.

             (3)  In determining a suitable place for safely destroying the goods, technology or things, and the way in which they may be destroyed, the Minister must have regard to:

                     (a)  the nature of the goods, technology or things; and

                     (b)  the suitability of the place for destroying goods, technology or things of that kind; and

                     (c)  the availability of suitable methods with which to safely destroy goods, technology or things of that kind.

31  Dealing with condemned goods etc

             (1)  If the Minister is reasonably satisfied that particular condemned goods, technology or things are of a kind to which subsection (2) applies, the Minister may give a person mentioned in paragraph 71(3)(a), (b) or (c) of the Act written approval to sell the goods, technology or things.

             (2)  This subsection applies to goods, technology or things that are not, under another law of the Commonwealth, a State or Territory:

                     (a)  required to be destroyed; or

                     (b)  illegal to sell.

             (3)  On receiving the Minister’s approval to sell the goods, technology or things, the approved person must:

                     (a)  offer the goods, technology or things for sale at the best reasonably achievable price; and

                     (b)  if the goods, technology or things are sold—pay the proceeds to the Commonwealth.

             (4)  The goods, technology or things must not be transferred to a buyer until the buyer agrees, in writing, to use them, or cause or allow them to be used, only for a lawful purpose.

32  Storage of condemned goods etc

                   For subsection 71(9) of the Act, until condemned goods, technology or things are destroyed or otherwise dealt with, they must be stored securely as if they were goods, technology or things to which section 29 applies.