DEFENCE TRADE CONTROLS AMENDMENT BILL 2023

2022-2023

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Defence Trade Controls Amendment Bill

2023

No. , 2023

(Defence)

A Bill for an Act to amend the

Defence Trade

Controls Act 2012

, and for related purposes

No. , 2023

Defence Trade Controls Amendment Bill 2023

Contents

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

Commencement ..................................................................................... 1

Schedules ............................................................................................... 2

Schedule 1

Main amendments

Defence Trade Controls Act 2012

Schedule 2

Contingent amendments

Defence Trade Controls Act 2012

No. , 2023

Defence Trade Controls Amendment Bill 2023

A Bill for an Act to amend the

Defence Trade

Controls Act 2012

, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act is the

Defence Trade Controls Amendment Act 2023

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.

Defence Trade Controls Amendment Bill 2023

No. , 2023

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1

A single day to be fixed by Proclamation.

However, if the provisions do not commence

within the period of 6 months beginning on

the day this Act receives the Royal Assent,

they commence on the day after the end of

that period.

3. Schedule 2

The later of:

(a) immediately after the commencement of

the provisions covered by table item 2;

and

(b) immediately after the commencement of

the

Defence Amendment (Safeguarding

Australia's Military Secrets) Act 2023

However, the provisions do not commence

at all if the event mentioned in paragraph (b)

does not occur.

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 Schedules

Legislation that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Main amendments

Schedule 1

No. , 2023

Defence Trade Controls Amendment Bill 2023

Schedule

1--Main amendments

Defence Trade Controls Act 2012

1 Section 3

Omit:

(a) supply DSGL technology;

(b) arrange for other persons to supply goods in the Defence

and Strategic Goods List or to supply DSGL technology;

substitute:

(a) supply DSGL goods or DSGL technology;

(b) provide DSGL services;

supply DSGL technology;

(d) publish DSGL technology in Part 1 of the Defence and

Strategic Goods List.

2 Subsection 4(1)

Insert:

Australian person

means:

(a) the Commonwealth, a State or a Territory; or

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

(d) an individual who is a permanent resident of Australia; or

(e) a body corporate incorporated by or under a law of the

Commonwealth or of a State or Territory.

constitutional DSGL services

: see subsection 5B(2).

constitutional supply

: see subsection 5B(1).

covered security clearance

means a security clearance that:

(a) is given:

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(i) by the Australian Government Security Vetting Agency

or by another Commonwealth agency that is authorised

or approved by the Commonwealth to issue security

clearances; or

(ii) by or on behalf of the Government of Canada, New

Zealand, the United Kingdom or the United States of

America, or an authority of any of those governments;

and

(b) is of a kind prescribed by the regulations for the purposes of

this definition.

DSGL goods

means goods within the scope of the Defence and

Strategic Goods List.

DSGL services

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 DSGL

goods that are, or DSGL technology that is, within the scope of

Part 1 of the Defence and Strategic Goods List.

3 Subsection (4)(1) (note to the definition of

DSGL

technology

)

Repeal the note.

4 Subsection 4(1)

Insert:

foreign person

means a person other than an Australian person.

permanent resident of Australia

means a person who is a

permanent resident within the meaning of the

Australian

Citizenship Act 2007

relevant DSGL services

: see subsection 5C(2).

relevant supply

: see subsection 5C(1).

5 After section 5A

Insert:

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5B Constitutional supplies and constitutional DSGL services

Constitutional supplies

(1) A supply of DSGL goods or DSGL technology is a

constitutional

supply

if:

(a) the supply is made by, or on behalf of, or to:

(i) a constitutional corporation; or

(ii) a body corporate that is incorporated in a Territory; or

(iii) a body corporate that is taken to be registered in a

Territory under section 119A of the

Corporations Act

2001

; or

(b) the supply is made by, or on behalf of, or to:

(i) the government of a foreign country or of part of a

foreign country; or

(ii) an authority of the government of a foreign country; or

(iii) an authority of the government of part of a foreign

country; or

paragraph 51(xix) of the Constitution); or

(d) the supply occurs wholly or partly outside Australia; or

(e) the supply is made in the course of constitutional trade or

commerce; or

(f) the supply occurs wholly or partly within a Territory; or

(g) the supply is made by way of a postal, telegraphic, telephonic

or other like service (within the meaning of paragraph 51(v)

of the Constitution).

Constitutional DSGL services

(2) DSGL services are

constitutional DSGL services

if:

(a) the DSGL services are provided by, or on behalf of, or to:

(i) a constitutional corporation; or

(ii) a body corporate that is incorporated in a Territory; or

(iii) a body corporate that is taken to be registered in a

Territory under section 119A of the

Corporations Act

2001

; or

(b) the DSGL services are provided by, or on behalf of, or to:

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(i) the government of a foreign country or of part of a

foreign country; or

(ii) an authority of the government of a foreign country; or

(iii) an authority of the government of part of a foreign

country; or

meaning of paragraph 51(xix) of the Constitution); or

(d) the DSGL services are provided wholly or partly outside

Australia; or

(e) the DSGL services are provided in the course of

constitutional trade or commerce; or

(f) the DSGL services are provided wholly or partly within a

Territory; or

(g) the DSGL services are provided by way of a postal,

telegraphic, telephonic or other like service (within the

meaning of paragraph 51(v) of the Constitution).

Definitions

(3) 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

between 2 Territories.

5C Relevant supplies and relevant DSGL services

Relevant supplies

(1) A supply of DSGL goods or DSGL technology is a

relevant supply

unless:

(a) the supply is to any of the following:

(i) an Australian person;

(ii) a citizen or permanent resident of the United Kingdom

or United States of America;

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(iii) a body corporate incorporated by or under a law of the

United Kingdom or United States of America, or of part

of either of those countries;

(iv) the Government of the United Kingdom or United

States of America, or the government of part of either of

those countries;

(v) an authority of the Government of the United Kingdom

or United States of America, or the government of part

of either of those countries; and

(b) either:

(i) the supply is to, or occurs wholly at, a place in

Australia, the United Kingdom or the United States of

America; or

(ii) if the supply is the provision of access to DSGL

technology

at the time of the provision of access, the

person to whom the access is provided is in Australia,

the United Kingdom or the United States of America;

and

determination in force under subsection (3); and

(d) any other requirements prescribed by the regulations for the

purposes of this paragraph are satisfied.

Relevant DSGL services

(2) DSGL services are

relevant DSGL services

unless:

(a) the DSGL services are provided to any of the following:

(i) an Australian person;

(ii) a citizen or permanent resident of the United Kingdom

or United States of America;

(iii) a body corporate incorporated by or under a law of the

United Kingdom or United States of America, or of part

of either of those countries;

(iv) the Government of the United Kingdom or United

States of America, or the government of part of either of

those countries;

(v) an authority of the Government of the United Kingdom

or United States of America, or the government of part

of either of those countries; and

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(b) the DSGL services are received at a place in Australia, the

United Kingdom or the United States of America; and

services relate is not excluded by a determination in force

under subsection (3); and

(d) any other requirements prescribed by the regulations for the

purposes of this paragraph are satisfied.

Excluded DSGL goods or DSGL technology

(3) The Minister may, by legislative instrument, determine that

specified DSGL goods or DSGL technology is excluded for the

purposes of paragraph (1)(c) or (2)(c).

Definitions

(4) In this section:

place

includes:

(a) a vehicle, vessel or aircraft; and

(b) an area of water; and

6 Section 9A

Omit:

(a) supply DSGL technology;

(b) arrange for other persons to supply goods in the Defence

and Strategic Goods List or to supply DSGL technology;

substitute:

(a) supply DSGL goods or DSGL technology;

(b) provide DSGL services;

supply DSGL technology;

(d) publish DSGL technology in Part 1 of the Defence and

Strategic Goods List.

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7 Section 9

A (after the paragraph beginning "There are

offences for persons")

Insert:

The offences regarding supplies deal with the following:

(a) supplies of DSGL technology from a person in Australia

to a person outside Australia;

(b) supplies of DSGL technology from a person in Australia

to a foreign person;

that was, previously exported or supplied from

Australia, from a foreign country to another country or

within the same foreign country.

Certain activities involving persons with a specified connection to

Australia, the United Kingdom or the United States of America are

excluded from being covered by the offences.

8 Section 9A

Omit:

Defence and Strategic Goods List or to supply DSGL

technology.

substitute:

supply DSGL technology.

9 Section 9

A (paragraph beginning "Registered brokers")

Omit "

goods in the Defence and Strategic Goods List

", substitute

"DSGL goods".

10 Section 10 (at the end of the heading)

Add "

from in Australia to outside Australia

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11 After paragraph 10(1)(b)

Insert:

(ba) the supply is a constitutional supply; and

(bb) the supply is a relevant supply; and

12 Subsection 10(1A)

Repeal the subsection, substitute:

Absolute liability

(1A) Absolute liability applies to paragraph (1)(ba).

Application to supplies to employees etc.

(1B) For the purposes of subsection (1), if the supplier is not an

individual and supplies DSGL technology to an officer or

employee of the supplier, the supply is taken to be a supply by the

supplier to another person (that other person being the officer or

employee).

13 Before subsection 10(2)

Insert:

Exceptions

14 Subsections 10(3) and (3A)

Repeal the subsections, substitute:

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

(a) the DSGL technology is supplied by or on behalf of a person

or body to an officer or employee of the person or body; and

(b) the officer or employee is:

(i) an Australian citizen or permanent resident of Australia;

(ii) a citizen or permanent resident of a foreign country that

is specified in an instrument under subsection 15(4A);

and

duties as an officer or employee.

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Note:

A defendant bears an evidential burden in relation to the matter in

subsection (3): see subsection 13.3(3) of the

Criminal Code

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

(a) the DSGL technology is supplied by or to a person who is a

member of the Australian Defence Force, an APS employee,

an employee of ASIO, an employee of ASIS, an employee of

ASD, a member or special member of the Australian Federal

Police or a member of the police force of a State or Territory;

and

(b)

the supply occurs in the course of the person's duties as

such

a person; and

prescribed by the regulations for the purposes of this

paragraph.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (3A): see subsection 13.3(3) of the

Criminal Code

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

(a) the DSGL technology is supplied to a person who holds a

covered security clearance; and

(b) the supply is made solely or primarily for a purpose

prescribed by the regulations for the purposes of this

paragraph.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (3B): see subsection 13.3(3) of the

Criminal Code

15 After section 10

Insert:

10A Offence

supply of DSGL technology in Australia to foreign

person

(1) A person (the

supplier

) commits an offence if:

(a) the supplier supplies DSGL technology to another person;

and

(b) the other person is a foreign person; and

(d) the supply is a relevant supply; and

(e) any of the following applies:

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(i) the place from which the supply is made and the place

to which the supply is made are both in Australia;

(ii) the supply occurs wholly at a place in Australia;

(iii) if the supply is the provision of access to DSGL

technology

at the time of the provision of access, both

the supplier and the other person are in Australia; and

(f) either:

(i) the supplier does not hold a permit under section 11

authorising the supply; or

(ii) the supply contravenes a condition of a permit that the

supplier holds under section 11; and

(g) 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.

Absolute liability

(2) Absolute liability applies to paragraph (1)(c).

Application to supplies to employees etc.

(3) For the purposes of subsection (1), if the supplier is not an

individual and supplies DSGL technology to an officer or

employee of the supplier, the supply is taken to be a supply by the

supplier to another person (that other person being the officer or

employee).

Exceptions

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

(a) the supply is of DSGL technology in relation to original

goods; and

(b) the supply is by an Australian Community member or by a

member of the United States Community; and

(d) the supply is for an activity referred to in Article 3(1)(a), (b),

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(e) at the time of the supply, the original goods are listed in

Part 1 of the Defense Trade Cooperation Munitions List; and

(f) at the time of the supply, the original goods are not listed in

Part 2 of the Defense Trade Cooperation Munitions List.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (4): see subsection 13.3(3) of the

Criminal Code

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

(a) the DSGL technology is supplied by or on behalf of a person

or body to an officer or employee of the person or body; and

(b) the officer or employee is a citizen or permanent resident of a

foreign country that is specified in an instrument under

subsection 15(4A); and

duties as an officer or employee.

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 (1) does not apply if:

(a) the DSGL technology is supplied by or to a person who is a

member of the Australian Defence Force, an APS employee,

an employee of ASIO, an employee of ASIS, an employee of

ASD, a member or special member of the Australian Federal

Police or a member of the police force of a State or Territory;

and

(b)

the supply occurs in the course of the person's duties as such

a person; and

prescribed by the regulations for the purposes of this

paragraph.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (6): see subsection 13.3(3) of the

Criminal Code

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

(a) the DSGL technology is supplied to a person who holds a

covered security clearance; and

(b) the supply is made solely or primarily for a purpose

prescribed by the regulations for the purposes of this

paragraph.

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Note:

A defendant bears an evidential burden in relation to the matter in

subsection (7): see subsection 13.3(3) of the

Criminal Code

(8) 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 (8): see subsection 13.3(3) of the

Criminal Code

Definitions

(9) In this section:

place

includes:

(a) a vehicle, vessel or aircraft; and

(b) an area of water; and

10B Offence

certain supplies of DSGL goods or DSGL technology

from outside Australia

(1) A person (the

supplier

) commits an offence if:

(a) the supplier supplies (the

current supply

) DSGL goods or

DSGL technology to another person; and

(b) the current supply is a constitutional supply; and

(d) any of the following applies:

(i) the current supply occurs wholly at a place outside

Australia;

(ii) the current supply is from a place outside Australia and

is to a place outside Australia or to a foreign person;

(iii) if the current supply is the provision of access to DSGL

technology

at the time of the provision of access, the

supplier is outside Australia and the other person is

outside Australia or is a foreign person; and

(e) the supplier obtained the DSGL goods or DSGL technology

as a direct or indirect result of the export or supply (the

earlier export or supply

) of the DSGL goods or DSGL

technology:

(i) from a place in Australia to a place outside Australia; or

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(ii) if the earlier export or supply was the provision of

access to DSGL technology

in circumstances where,

at the time of the provision of access, the person

providing access was in Australia and the person to

whom access was provided was outside Australia; and

(f) either of the following (whether or not obtained) was

required in relation to the earlier export or supply:

(i) permission (however described) under regulations made

under the

Customs Act 1901

;

(ii) a permit given under section 11 of this Act; and

(g) either:

(i) the supplier does not hold a permit under section 11

authorising the current supply; or

(ii) the current supply contravenes a condition of a permit

that the supplier holds under section 11; and

(h) there is no notice in force under subsection 14(1) in relation

to the supplier and the current supply.

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

both.

Application to supplies to employees etc.

(2) For the purposes of subsection (1), if the supplier is not an

individual and supplies DSGL goods or DSGL technology to an

officer or employee of the supplier, the supply is taken to be a

supply by the supplier to another person (that other person being

the officer or employee).

Absolute and strict liability

(3) Absolute liability applies to paragraph (1)(b).

(4) Strict liability applies to paragraph (1)(f).

Exceptions

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

(a) the current supply is of:

(i) goods that are an Article 3(1) US Defence Article; or

(ii) goods that are an Article 3(3) US Defence Article; or

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(iii) DSGL technology in relation to original goods; and

(b) the current supply is by an Australian Community member or

by a member of the United States Community; and

a member of the United States Community; and

(d) the current 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 current supply, the following are listed in

Part 1 of the Defense Trade Cooperation Munitions List:

(i) if the supply is of original goods or DSGL technology in

relation 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

(f) at the time of the current supply, the following are not listed

in Part 2 of the Defense Trade Cooperation Munitions List:

(i) if the supply is of original goods or DSGL technology in

relation to original goods

the original goods;

(ii) if the supply is of 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 (5): see subsection 13.3(3) of the

Criminal Code

(6) Subsection (1) does not apply if, in relation to the current supply:

(a) the DSGL goods or DSGL technology is supplied by or on

behalf of a person or body to an officer or employee of the

person or body; and

(b) the officer or employee is:

(i) an Australian citizen or permanent resident of Australia;

(ii) a citizen or permanent resident of a foreign country that

is specified in an instrument under subsection 15(4A);

and

duties as an officer or employee.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (6): see subsection 13.3(3) of the

Criminal Code

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(7) Subsection (1) does not apply if, in relation to the current supply:

(a) the DSGL goods or DSGL technology is supplied by or to a

person who is a member of the Australian Defence Force, an

APS employee, an employee of ASIO, an employee of ASIS,

an employee of ASD, a member or special member of the

Australian Federal Police or a member of the police force of

a State or Territory; and

(b)

the supply occurs in the course of the person's duties as such

a person; and

prescribed by the regulations for the purposes of this

paragraph.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (7): see subsection 13.3(3) of the

Criminal Code

(8) Subsection (1) does not apply if, in relation to the current supply:

(a) the DSGL goods or DSGL technology is supplied to a person

who holds a covered security clearance; and

(b) the supply is made solely or primarily for a purpose

prescribed by the regulations for the purposes of this

paragraph.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (8): see subsection 13.3(3) of the

Criminal Code

(9) 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 (9): see subsection 13.3(3) of the

Criminal Code

Geographical jurisdiction

(10) Section 15.4 of the

Criminal Code

(extended geographical

jurisdiction

category D) applies to an offence against

subsection (1) of this section.

Definitions

(11) In this section:

place

includes:

(a) a vehicle, vessel or aircraft; and

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(b) an area of water; and

10C Offence

provision of DSGL services

(1) A person (the

provider

) commits an offence if:

(a) the provider provides DSGL services to another person; and

(b) the other person is a foreign person; and

(d) the DSGL services are relevant DSGL services; and

(e) either:

(i) the provider is an Australian person; or

(ii) the DSGL services are provided at or from a place in

Australia; and

(f) either:

(i) the provider does not hold a permit under section 11

authorising the provision of the DSGL services; or

(ii) the provision of the DSGL services contravenes a

condition of a permit that the provider holds under

section 11; and

(g) there is no notice in force under subsection 14(1) in relation

to the provider and the provision of the DSGL services.

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

both.

Absolute liability

(2) Absolute liability applies to paragraph (1)(c).

Exceptions

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

(a) the DSGL services are provided in relation to:

(i) goods that are an Article 3(1) US Defence Article; or

(ii) goods that are an Article 3(3) US Defence Article; or

(iii) DSGL technology in relation to original goods; and

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(b) the DSGL services are provided by an Australian Community

member or by a member of the United States Community;

and

member or a member of the United States Community; and

(d) the DSGL 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 DSGL services, the

following are listed in Part 1 of the Defense Trade

Cooperation Munitions List:

(i) if the DSGL services are provided in relation to original

goods or DSGL technology in relation to original

goods

the original goods;

(ii) if the DSGL services are provided in relation to

incorporated goods

any of the original goods

incorporated in the incorporated goods; and

(f) at the time of the provision of the DSGL services, the

following are not listed in Part 2 of the Defense Trade

Cooperation Munitions List:

(i) if the DSGL services are provided in relation to original

goods or DSGL technology in relation to original

goods

the original goods;

(ii) if the DSGL 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 (3): see subsection 13.3(3) of the

Criminal Code

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

(a) the DSGL services are provided by or on behalf of a person

or body to an officer or employee of the person or body; and

(b) the officer or employee is a citizen or permanent resident of a

foreign country that is specified in an instrument under

subsection 15(4A); and

the officer or employee

's duties as

an officer or employee.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (4): see subsection 13.3(3) of the

Criminal Code

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

(a) the DSGL services are provided in support of a lawful supply

of DSGL goods or DSGL technology; and

(b) the DSGL services solely consist of training with respect to,

or the performance of, maintenance relating to the DSGL

goods or DSGL technology; and

performed, is limited to inspection, testing, calibration or

repair (including overhaul, reconditioning and one-to-one

replacement of any defective items, parts or components);

and

(d) the maintenance covered by the training, or which is

performed, does not include any modification, enhancement,

upgrade or other form of alteration or improvement that:

(i) enhances the performance or capability of the DSGL

goods or DSGL technology; and

(ii) is not only an alteration or improvement in relation to

the reliability or maintainability of the DSGL goods or

DSGL technology.

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 (1) does not apply if:

(a) the DSGL services are provided by or to a person who is a

member of the Australian Defence Force, an APS employee,

an employee of ASIO, an employee of ASIS, an employee of

ASD, a member or special member of the Australian Federal

Police or a member of the police force of a State or Territory;

and

(b) the provision of the DSGL services occurs in the course of

the person's duties as such a person; and

purpose prescribed by the regulations for the purposes of this

paragraph.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (6): see subsection 13.3(3) of the

Criminal Code

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

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(a) the DSGL services are provided to a person who holds a

covered security clearance; and

(b) the DSGL services are provided solely or primarily for a

purpose prescribed by the regulations for the purposes of this

paragraph.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (7): see subsection 13.3(3) of the

Criminal Code

(8) 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 (8): see subsection 13.3(3) of the

Criminal Code

Geographical jurisdiction

(9) Section 15.4 of the

Criminal Code

(extended geographical

jurisdiction

category D) applies to an offence against

subsection (1) of this section.

Definitions

(10) In this section:

place

includes:

(a) a vehicle, vessel or aircraft; and

(b) an area of water; and

16 Section 11 (heading)

Repeal the heading, substitute:

11 Permits for the purposes of sections 10 to 10C

17 Subsections 11(1) to (6)

Repeal the subsections, substitute:

(1) A person may apply to the Minister for a permit under this section

to do an activity that is:

(a) a constitutional supply of DSGL goods; or

(b) a constitutional supply of DSGL technology; or

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Note:

Section 66 sets out application requirements.

(2) Without limiting subsection (1), an application by a person under

that subsection may do one or more of the following:

(a) cover 2 or more activities by the person;

(b) cover one or more activities by the person for a period

described in the application;

projects described in the application.

(2A) An application by a person under subsection (1), that covers one or

more activities by the person for one or more projects described in

the application, may also cover one or more activities by one or

more other persons (each of whom is a

project participant

) for

those projects.

Minister's decision

(3) If a person makes an application under subsection (1) in

accordance with section 66:

(a) the Minister must decide whether or not to give the person a

permit for each activity, by the person, covered by the

application; and

(b) if subsection (2A) of this section applies

the Minister must

decide whether or not to give each project participant a

permit for each activity, by the participant, covered by the

application.

(4) The Minister may give a person a permit for 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) Without limiting subsection (4), a permit given by the Minister

may do one or more of the following:

(a) cover 2 or more activities;

(b) cover one or more specified activities for a period specified

in, or worked out in accordance with, the permit;

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specified projects.

(6) If the Minister refuses to give a 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.

18 After subsection 11(7)

Insert:

(7A) Without limiting the conditions that may be specified in the permit,

those conditions may impose any obligations on the person to

whom the permit is given that the Minister reasonably considers

are necessary for the purposes of:

(a) promoting compliance with this Act, whether by the person

to whom the permit is given or any other person; or

(b) managing risks associated with persons contravening this

Act.

(7B) To avoid doubt, an obligation mentioned in subsection (7A) may

apply before, at or after the time an activity covered by the permit

is done.

19 At the end of section 11

Add:

(11) A notice under subsection (10) must set out the effect of

subsections (12) and (13).

Certain obligations to continue after revocation

(12) If the Minister revokes a permit given to a person under this

section that specifies conditions imposing obligations mentioned in

subsection (7A) that apply after an activity covered by the permit is

done, the permit is taken to continue in force for the purposes of:

(a) sections 12 (changing permit conditions) and 13 (breaching

permit conditions); and

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(b) any other provision of this Act to the extent it relates to those

sections.

(13) However, the Minister must not impose a new permit condition in

relation to the permit under subsection 12(1).

20 Subsection 13(3)

Repeal the subsection, substitute:

(3) Section 15.4 of the

Criminal Code

(extended geographical

jurisdiction

category D) applies to an offence against

subsection (1) of this section.

21 Section 14 (heading)

Repeal the heading, substitute:

Minister's notice prohibiting activities

22 Subsection 14(1)

Repeal the subsection, substitute:

(1) If the Minister reasonably believes that, if a person were to do one

of the activities covered by subsection (1A) in any circumstances

or in particular circumstances, the activity would prejudice the

security, defence or international relations of Australia, the

Minister may give the person a notice:

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

(b) 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.

(1A) The activities are as follows:

(a) a constitutional supply of particular DSGL goods at or from a

place outside Australia to a foreign person;

(b) a constitutional supply to another person of particular DSGL

technology;

(1B) Subsection (1A) does not cover an activity that would occur wholly

outside Australia unless:

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(a) the activity would be done by or on behalf of an Australian

person; or

(b) the activity would relate to DSGL goods or DSGL

technology in circumstances where the DSGL goods or

DSGL technology would have been obtained as a direct or

indirect result of the export or supply of the DSGL goods or

DSGL technology:

(i) from a place in Australia to a place outside Australia; or

(ii) if that supply were the provision of access to DSGL

technology

in circumstances where, at the time of the

provision of access, the person providing access was in

Australia and the person to whom access was provided

was outside Australia.

(1C) For the purposes of subsection (1A), a supply by a person who is

not an individual to an officer or employee of that person is taken

to be a supply by the first-mentioned person to another person (that

other person being the officer or employee).

23 Paragraphs 14(10)(a) and (b)

Repeal the paragraphs, substitute:

(a) the person:

(i) supplies DSGL goods; or

(ii) supplies DSGL technology; or

(iii) provides DSGL services; and

(b) the supply of the DSGL goods or DSGL technology, or

provision of the DSGL services, contravenes a notice, or a

condition specified in a notice, that is in force under

subsection (1); and

24 Subsection 14(11)

Repeal the subsection, substitute:

(11) Section 15.4 of the

Criminal Code

(extended geographical

jurisdiction

category D) applies to an offence against

subsection (10) of this section.

Definitions

(12) In this section:

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place

includes:

(a) a vehicle, vessel or aircraft; and

(b) an area of water; and

25 Subparagraph 15(1)(a)(i)

Omit "

goods, where the goods

", substitute "DSGL goods, where the

DSGL goo

ds".

26 After paragraph 15(1)(a)

Insert:

(aa) the supply is, or is to be, a relevant supply; and

27 Subparagraph 15(1A)(a)(i)

Omit "

goods, where the goods

", substitute "DSGL goods, where the

DSGL goods".

28 Paragraph 15(1A)(b)

Omit "goods", substitute "DSGL goods".

29 After paragraph 15(1A)(b)

Insert:

(ba) the supply is, or is to be, a relevant supply; and

30 Subparagraph 15(4)(a)(i)

Omit "goods", substitute "DSGL goods".

31 Subsection 15(4B)

Omit "goods", substitute "DSGL goods".

32 Subparagraph 15(4D)(a)(i)

Omit "

goods, where the goods

", substitute "DSGL goods, where the

DSGL goods

33 Paragraph 15(4D)(b)

Omit "goods", substitute "DSGL goods".

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34 Paragraph 15A(1)(a)

Omit "

goods listed in the Defence and Strategic Goods List

", substitute

"DSGL goods".

35 Subparagraph 15A(10)(a)(i)

Omit "

goods, where the goods are listed in the Defence and Strategic

Goods List and

", substitute "DSGL goods

, where

36 Paragraph 15B(1)(a)

Omit

specified goods

", substitute "

specified

DSGL goods".

37 Subparagraph 15B(7)(a)(i)

Omit "

goods, where the goods

", substitute "DSGL goods, where the

DSGL goods".

38 Paragraph 16(1)(a)

Omit "

goods, where the goods are listed in the Defence and Strategic

Goods List

", substitute "DSGL goods".

39 Subsection 16(2) (examples 1, 2 and 3)

Omit "goods", substitute "DSGL goods".

40 Section 25A (note)

Repeal the note, substitute:

Note:

If after applying this section in relation to a decision under this Part, a

delegate of the Minister is satisfied that a thing would prejudice the

security, defence or international relations of Australia, the delegate

may be required to refer the matter to the Minister or to a more senior

delegate of the Minister: see subsections 73(7) to (10).

41 Subsection 58(1)

Omit "supplies that the person makes",

substitute "activities that the

person does".

42 Paragraph 63(1)(a)

Omit "a supply", substitute "an activity".

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43 Subsection 73(2)

Omit "

subsection 11(8), section 1

4", substitute "

section 1

1, 12 or 14".

44 After subsection 73(2)

Insert:

Delegation of functions or powers under section 11, 12 or 14

(2A) Subject to subsection (2B), the Minister may, by writing, delegate

all or any of the Minister's functions or powers under

section 11 or

12 to:

(a) the Secretary; or

(b) an SES employee, or acting SES employee, in the

Department; or

Level 1 or 2, or equivalent, position in the Department.

(2B) The Minister may only

delegate the Minister's functions or powers

under subsection 11(8) to:

(a) the Secretary; or

(b) an SES employee, or acting SES employee, in the

Department.

(2C) The Minister may

, by writing, delegate all or any of the Minister's

functions or powers under section 14 to:

(a) the Secretary; or

(b) an SES employee, or acting SES employee, in the

Department.

45 Subsection 73(7) (table item 1)

Repeal the item.

46 At the end of section 73

Add:

(9) A delegate mentioned in paragraph (2A)(c) must not make a

decision under section 11 to refuse to give a person a permit for an

activity covered by an application for a permit, if the delegate is

satisfied that the activity would prejudice the security, defence or

international relations of Australia.

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(10) If subsection (9) applies:

(a) the delegate must refer the particular case to:

(i) the Minister; or

(ii) a delegate mentioned in paragraph (2A)(a) or (b); and

(b) if the case is referred to the Minister

the Minister must

decide the case personally; or

paragraph (2A)(a) or (b)

that other delegate (or another

delegate mentioned in either of those paragraphs) must

decide the case.

47 Application of amendments

offences etc.

(1)

The amendments of section 10 of the

Defence Trade Controls Act 2012

made by this Schedule apply in relation to conduct occurring on or after

the start day.

(2)

Sections 10A, 10B and 10C of the

Defence Trade Controls Act 2012

, as

inserted by this Schedule, apply in relation to conduct occurring on or

after the start day.

(3)

The amendments of section 14 of the

Defence Trade Controls Act 2012

made by this Schedule apply in relation to an activity done on or after

the start day.

(4)

The amendments of section 15 of the

Defence Trade Controls Act 2012

made by this Schedule apply in relation to conduct occurring on or after

the start day.

(5)

In this item:

start day

means the day after the end of the period of 6 months

beginning on the day this item commences.

48 Saving provision

permits

If a permit given to a person under section 11 of the

Defence Trade

Controls Act 2012

is in force immediately before this item commences,

the permit continues in force (and may be dealt with) on and after that

commencement as if it had been given under that section as amended by

this Schedule.

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49 Saving provision

prohibition notices

The amendments of section 14 of the

Defence Trade Controls Act 2012

made by this Schedule do not affect the continuity of a notice given to a

person under that section that is in force immediately before this

Schedule commences.

50 Saving provision

delegations

The amendments of section 73 of the

Defence Trade Controls Act 2012

made by this Schedule do not affect the continuity of a delegation that is

in force under that section immediately before this Schedule

commences.

Contingent amendments

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Schedule

2--Contingent amendments

Defence Trade Controls Act 2012

1 After the heading to subsection 10C(3)

Insert:

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

(a) the DSGL services are provided by a person in circumstances

where a foreign work authorisation (within the meaning of

Part IXAA of the

Defence Act 1903

) that is in force

authorises the person to perform work for, or on behalf of:

(i) a military organisation (within the meaning of that Part)

of a foreign country; or

(ii) a government body (within the meaning of that Part) of

a foreign country; and

(b) the person provides the DSGL services in the course of

performing the work authorised by the foreign work

authorisation.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (2A): see subsection 13.3(3) of the

Criminal Code

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

(a) the DSGL services are provided by a person in circumstances

where a foreign work authorisation (within the meaning of

Part IXAA of the

Defence Act 1903

) that is in force

authorises the person to provide training to:

(i) a military organisation (within the meaning of that Part)

of a foreign country; or

(ii) a government body (within the meaning of that Part) of

a foreign country; and

(b) the DSGL services provided solely consist of the training that

is authorised by the foreign work authorisation.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (2B): see subsection 13.3(3) of the

Criminal Code

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