DEFENCE TRADE CONTROLS BILL 2011

i Defence Trade Controls Bill 2011 No. , 2011

Contents

Part 1--Preliminary

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

3 Simplified

outline

..............................................................................

4 Definitions

.........................................................................................

5 US

Defence

Articles

..........................................................................

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

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

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

9 Severability--additional

effect of Act ............................................... 8

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

List

Division 1--Primary offences

Offences--supplies and provision of defence services in

relation to the Defence and Strategic Goods List ............................. 10

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

12 Changing

permit

conditions ............................................................. 15

13 Breaching

permit

conditions ............................................................ 16

14 Notice

prohibiting activities ............................................................. 16

Division 2--Brokering offences

15 Offence--arranging

supplies and provision of defence

services in relation to the Defence and Strategic Goods List ........... 19

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

17 Changing

permit

conditions ............................................................. 23

18 Breaching

permit

conditions ............................................................ 23

Division 3--Registered brokers

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

20 Registering

brokers

..........................................................................

21 Renewing

registration

......................................................................

22 Changing

registration conditions ..................................................... 29

23 Cancelling

the

registration of a broker ............................................. 30

25 Extended

meaning

of conviction ..................................................... 31

Part 3--Defense Trade Cooperation Treaty

Division 1--Preliminary

26 Simplified

outline

............................................................................

Defence Trade Controls Bill 2011 No. , 2011 ii

Division 2--Membership of the Australian Community

Approval of bodies corporate as members of the Australian

Community ...................................................................................... 33

28 Approval

conditions ......................................................................... 35

29 Suspending

approval

...................................................................

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

Division 3--Main offences

US Defence Articles listed in the Defense Trade Cooperation

Munitions List .................................................................................. 41

US Defence Articles exempt from the scope of the Defense

Trade Cooperation Treaty ................................................................ 47

Division 4--Ministerial directions

Ministerial directions--avoiding prejudice to the security,

defence or international relations of Australia ................................. 51

Ministerial directions--suspension or cancellation of

approvals .......................................................................................... 53

Division 5--Other matters

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

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

Part 4--Monitoring powers

Division 1--Preliminary

37 Simplified

outline

............................................................................

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

Division 2--Appointment of authorised officers and issue of

identity cards

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

40 Identity

cards

...................................................................................

Division 3--Powers of authorised officers

41 Authorised

officer

may enter premises ............................................ 60

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

43 Authorised

officer

may

require

person to answer questions or

produce documents .......................................................................... 62

44 Self-incrimination

............................................................................

Division 4--Obligations of authorised officers

45 Announcement

before entry ............................................................. 64

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

Division 5--Occupier's rights and responsibilities

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

iii Defence Trade Controls Bill 2011 No. , 2011

Occupier to provide authorised officer with facilities and

assistance ......................................................................................... 65

Division 6--Other matters

49 Tampering

etc.

with things secured ................................................. 66

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

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

Part 5--Information-gathering powers

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

53 Copying

documents--compensation ............................................... 69

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

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

56 Secretary

may

retain

original documents ......................................... 69

57 Self-incrimination

............................................................................

Part 6--Record-keeping

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

59 Production

records ....................................................................... 72

60 Secretary

may

inspect

and copy records .......................................... 73

61 Secretary

may

retain records ............................................................ 73

62 Self-incrimination

............................................................................

Part 7--Review of decisions

63 Reviewable

decisions ....................................................................... 75

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

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

Part 8--Other matters

66 Applications

under Part 2 or 3 ......................................................... 78

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

68 Disclosure

reasons for decisions .................................................. 78

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

70 Injunctions

.......................................................................................

71 Forfeiture

.........................................................................................

72 Evidential

certificates by Minister ................................................... 84

73 Delegation

Minister .................................................................... 84

74 Delegation

Secretary

...................................................................

75 Regulations

......................................................................................

Part 1 Preliminary

Section 2

2 Defence Trade Controls Bill 2011 No. , 2011

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 and

2 and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Sections 3 to

The later of:

(a) the day after this Act receives the Royal

Assent; and

(b) the day on which the Treaty between the

Government of Australia and the

Government of the United States of

America concerning Defense Trade

Cooperation done at Sydney on

5 September 2007 enters into force.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

The Minister must announce by notice in the

Gazette the day on which the Treaty enters

into force.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

Preliminary Part 1

Section 3

Defence Trade Controls Bill 2011 No. , 2011 3

3 Simplified outline

The following is a simplified outline of this Act:

�

This Act regulates dealings in items listed in the Defence and

Strategic Goods List (the DSGL) and in items covered by the

Defense Trade Cooperation Treaty between Australia and the

United States of America.

�

Part 2 creates offences for persons who:

(a)

engage in dealings relating to goods or technology

listed in the DSGL; or

(b)

arrange for other persons to engage in dealings

relating to goods or technology listed in the DSGL.

�

Part 3 contains provisions implementing the Defense Trade

Cooperation Treaty between Australia and the United States

of America.

�

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

�

Part 5 contains information-gathering powers.

�

Part 6 deals with record-keeping obligations.

�

Part 7 deals with review of decisions.

�

Part 8 deals with various other matters (such as injunctions,

forfeiture of things and delegations).

4 Definitions

(1) In this Act:

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

section 5.

Note:

See also section 35 (about transition to the Defense Trade Cooperation

Treaty).

Part 1 Preliminary

Section 4

4 Defence Trade Controls Bill 2011 No. , 2011

Article 3(3) US Defence Article has the meaning given by

section 5.

Note:

See also section 35 (about transition to the Defense Trade Cooperation

Treaty).

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

Territories.

Australian Community facility means a facility covered by Article

4(1)(a) of the Defense Trade Cooperation Treaty.

Australian Community member means:

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

(b) a person covered by Article 4(1)(b) of the Defense Trade

Cooperation Treaty; or

(c)

person:

(i) who is employed, or is engaged under a contract for

services, by a body corporate that holds an approval

under section 27; and

(ii) who satisfies the requirements prescribed by the

regulations for the purposes of this subparagraph.

Australian person means:

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

the Commonwealth, a State or a Territory; or

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

Act 1958, the holder of a permanent visa; or

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

Commonwealth or of a State or Territory.

authorised officer means a person appointed as an authorised

officer under section 39.

Defence and Strategic Goods List means the document:

(a) formulated by the Minister, and published, as mentioned in

paragraph 112(2A)(aa) of the Customs Act 1901; and

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

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

Preliminary Part 1

Section 4

Defence Trade Controls Bill 2011 No. , 2011 5

defence services, in relation to goods or in relation to technology

relating to goods, means the giving of assistance (including

training) in relation to the design, development, engineering,

manufacture, production, assembly, testing, repair, maintenance,

modification, operation, demilitarisation, destruction, processing or

use of the goods or technology.

Defense Trade Cooperation Munitions List means the document

made under section 36, as amended by the Minister and in force

from time to time.

Defense Trade Cooperation Treaty means the Treaty between the

Government of Australia and the Government of the United States

of America concerning Defense Trade Cooperation done at Sydney

on 5 September 2007, as amended from time to time.

Note:

In 2011, the text of the Treaty was accessible through the Australian

Treaties Library on the AustLII website (www.austlii.edu.au).

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

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

Implementing Arrangements means the Implementing

Arrangements (having effect from time to time) referred to in

Article 14 of the Defense Trade Cooperation Treaty.

Note:

In 2011, the text of the Implementing Arrangements was accessible

through the Australian Treaties Library on the AustLII website

(www.austlii.edu.au).

incorporated goods has the meaning given by section 5.

manager of a body corporate means an individual who makes, or

participates in making, decisions that affect the whole, or a

substantial part, of the body's affairs.

member of the United States Community means a person or body

covered by Article 5(1) or (2) of the Defense Trade Cooperation

Treaty.

monitoring powers has the meaning given by section 42.

offence against this Act includes the following:

Part 1 Preliminary

Section 4

6 Defence Trade Controls Bill 2011 No. , 2011

(a) an offence against section 6 of the Crimes Act 1914 that

relates to this Act;

(b) an offence against section 11.1, 11.4 or 11.5 of the Criminal

Code that relates to this Act;

section 11.2, 11.2A or 11.3 of the Criminal Code and that

relates to this Act.

original goods has the meaning given by section 5.

person assisting an authorised officer has the meaning given by

section 50.

premises includes the following:

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

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

registered broker means a person in respect of whom a registration

is in force under Division 3 of Part 2.

Secretary means the Secretary of the Department.

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

hire-purchase.

technology relating to goods means:

(a) information relating to the design, development, production,

manufacture, assembly, operation, repair, testing,

maintenance or modification of the goods (including

information in the form of blueprints, drawings, photographs,

plans, instructions, specifications, algorithms or

documentation); or

(b) software relating to the goods;

other than information specified in an instrument under

subsection (2).

(2) The Minister may, by legislative instrument, specify information

for the purposes of the definition of technology in subsection (1).

Preliminary Part 1

Section 5

Defence Trade Controls Bill 2011 No. , 2011 7

5 US Defence Articles

Article 3(1) US Defence Article

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

(a) the initial movement of which is from a member of the

United States Community to an Australian Community

member, or to an Australian Community facility, for an

activity referred to in Article 3(1)(a), (b), (c) or (d) of the

Defense Trade Cooperation Treaty; and

(b) listed in Part 1 of the Defense Trade Cooperation Munitions

List immediately before the start of that movement.

(2) Goods incorporating an Article 3(1) US Defence Article within the

meaning of subsection (1) are also an Article 3(1) US Defence

Article.

(3) The modification of an Article 3(1) US Defence Article in any way

does not affect the status of the goods concerned as an Article 3(1)

US Defence Article.

Article 3(3) US Defence Article

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

(a) acquired by, and delivered to, the Government of Australia as

mentioned in Article 3(3) of the Defense Trade Cooperation

Treaty; and

(b) listed in Part 1 of the Defense Trade Cooperation Munitions

List at the time of that delivery.

(5) Goods incorporating an Article 3(3) US Defence Article within the

meaning of subsection (4) are also an Article 3(3) US Defence

Article.

(6) The modification of an Article 3(3) US Defence Article in any way

does not affect the status of the goods concerned as an Article 3(3)

US Defence Article.

Original goods

(7) Original goods means goods that are:

Part 1 Preliminary

Section 6

8 Defence Trade Controls Bill 2011 No. , 2011

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

subsection (1); or

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

subsection (4).

Incorporated goods

(8)

Incorporated goods means goods that are:

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

subsection (2); or

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

subsection (5).

Note:

See also section 35 (about transition to the Defense Trade Cooperation

Treaty).

6 Crown to be bound

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

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

offence.

7 Extension to external Territories

This Act extends to every external Territory.

8 Extension to things outside Australia

Except so far as the contrary intention appears, this Act extends to

acts, omissions, matters and things outside Australia.

9 Severability--additional effect of Act

(1) Without limiting its effect apart from this section, this Act also has

the effect it would have if its application were limited to:

(a) giving effect to:

(i) the Defense Trade Cooperation Treaty; or

(ii) any international obligation of Australia arising

otherwise than under the Defense Trade Cooperation

Treaty; or

Preliminary Part 1

Section 9

Defence Trade Controls Bill 2011 No. , 2011 9

(b) matters external to Australia; or

(d) the defence of Australia; or

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

corporations; or

(f) things done, or omitted to be done, in the course of

constitutional trade or commerce; or

(g) things done using a postal, telegraphic, telephonic or other

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

Constitution); or

(h) things done by, or in relation to, aliens (within the meaning

of paragraph 51(xix) of the Constitution).

(2) In this section:

constitutional corporation means a corporation to which

paragraph 51(xx) of the Constitution applies.

constitutional trade or commerce means trade or commerce:

(a) between Australia and places outside Australia; or

(b) among the States; or

between 2 Territories.

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

Division 1 Primary offences

Section 10

10 Defence Trade Controls Bill 2011 No. , 2011

Part 2--Dealings in items in the Defence and

Strategic Goods List

Division 1--Primary offences

10 Offences--supplies and provision of defence services in relation

to the Defence and Strategic Goods List

Supplies

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

(a) the supplier supplies to another person technology relating to

goods, where the technology is listed in the Defence and

Strategic Goods List; and

(b)

either:

(i) the supply is from a place in Australia to a place outside

Australia, the supplier is a foreign person and the other

person is a foreign person; or

(ii) the supplier is an Australian person and the other person

is a foreign person; and

(c)

either:

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

authorising the supply of the technology; or

(ii) the supply of the technology contravenes a condition of

a permit that the supplier holds under section 11; and

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

to the supplier and the supply.

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

both.

Provision of defence services

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

(a)

either:

(i) the provider provides defence services to another person

in relation to goods, where the goods are listed in the

Defence and Strategic Goods List; or

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

Primary offences Division 1

Section 10

Defence Trade Controls Bill 2011 No. , 2011 11

(ii) the provider provides defence services to another person

in relation to technology relating to goods, where the

technology is listed in the Defence and Strategic Goods

List; and

(b)

either:

(i) the defence services are received at a place outside

Australia, the provider is an Australian person and the

other person is a foreign person; or

(ii) the defence services are received at a place in Australia

and the other person is a foreign person; and

(c)

either:

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

authorising the provision of the defence services; or

(ii) the provision of the defence services contravenes a

condition of a permit that the provider holds under

section 11; and

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

to the provider and the provision of the defence services.

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

both.

Exceptions--Defense Trade Cooperation Treaty

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

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

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

member of the United States Community; and

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

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

Part 1 of the Defense Trade Cooperation Munitions List.

Note:

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

subsection (3): see subsection 13.3(3) of the Criminal Code.

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

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

Division 1 Primary offences

Section 10

12 Defence Trade Controls Bill 2011 No. , 2011

(a) the defence services are provided in relation to goods that are

an Article 3(1) US Defence Article or an Article 3(3) US

Defence Article or the defence services are provided in

relation to technology relating to original goods; and

(b) the defence services are provided by an Australian

Community member or by a member of the United States

Community; and

Community member or a member of the United States

Community; and

(d) the defence services are for an activity referred to in Article

3(1)(a), (b), (c) or (d) of the Defense Trade Cooperation

Treaty; and

(e) at the time of the provision of the defence services, the

following is listed in Part 1 of the Defense Trade Cooperation

Munitions List:

(i) if the defence services are provided in relation to

original goods or in relation to technology relating to

original goods--the original goods;

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

incorporated goods--any of the original goods

incorporated in the incorporated goods.

Note:

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

subsection (4): see subsection 13.3(3) of the Criminal Code.

Exceptions--Australian Defence Force members, APS employees

and members of the police

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

(a) the technology is supplied by a person who is a member of

the Australian Defence Force, an APS employee, a member

or special member of the Australian Federal Police or a

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

(b) he or she supplies the technology in the course of his or her

duties as such a person.

Note:

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

subsection (5): see subsection 13.3(3) of the Criminal Code.

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

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

Primary offences Division 1

Section 11

Defence Trade Controls Bill 2011 No. , 2011 13

(a) the defence services are provided by a person who is a

member of the Australian Defence Force, an APS employee,

a member or special member of the Australian Federal Police

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

(b) he or she provides the defence services in the course of his or

her duties as such a person.

Note:

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

subsection (6): see subsection 13.3(3) of the Criminal Code.

Exception--regulations

(7) Subsection (1) or (2) does not apply in the circumstances

prescribed by the regulations for the purposes of this subsection.

Note:

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

subsection (7): see subsection 13.3(3) of the Criminal Code.

Geographical jurisdiction

(8) Section 15.2 of the Criminal Code (extended geographical

jurisdiction--category B) applies to an offence against

subsection (1) or (2).

Definition

(9) In this section:

place includes:

(a) a vehicle, vessel or aircraft; and

(b) an area of water; and

11 Permits for purposes of section 10

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

to do an activity that is:

(a) the supply to another person of technology relating to goods,

where the technology is listed in the Defence and Strategic

Goods List; or

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

Division 1 Primary offences

Section 11

14 Defence Trade Controls Bill 2011 No. , 2011

(b) the provision of defence services to another person in relation

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

Strategic Goods List; or

to technology relating to goods, where the technology is

listed in the Defence and Strategic Goods List.

Note:

Section 66 sets out application requirements.

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

(a) cover more than one activity; and

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

application.

Example 1: For paragraph (a)--a person applies for a permit to supply company A

technology relating to particular goods and to provide defence services

to company B in relation to other goods.

Example 2: For paragraph (b)--a person applies for a permit to supply company A

technology relating to particular goods for a 3-year period.

Minister's decision

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

accordance with section 66, the Minister must decide whether or

not to give the person a permit to do each activity covered by the

application.

(4) The Minister may give the person a permit to do a specified

activity if the Minister is satisfied that the activity would not

prejudice the security, defence or international relations of

Australia.

Note:

Section 67 deals with giving permits under this Act.

(5) A permit given by the Minister may:

(a) cover more than one activity; and

(b) cover a specified activity for a period specified in, or worked

out in accordance with, the permit.

(6) If the Minister refuses to give the person a permit for an activity

covered by the application, the Minister must give the person

notice of the refusal and the reasons for the refusal.

Note 1:

Section 67 deals with giving notices under this Act.

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

Primary offences Division 1

Section 12

Defence Trade Controls Bill 2011 No. , 2011 15

Note 2:

Section 68 deals with disclosing reasons for decisions.

Permit conditions

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

the permit.

Note:

Section 12 deals with changing permit conditions.

Revoking a permit

(8) The Minister may, by writing, revoke a permit given to a person

under this section.

(9) However, the Minister may revoke the permit only if the Minister

is satisfied that any activity covered by the permit would prejudice

the security, defence or international relations of Australia.

(10) The Minister must give the person notice of the revocation and the

reasons for the revocation. The revocation takes effect at the time

the person receives the notice.

Note 1:

Section 67 deals with giving notices under this Act.

Note 2:

Section 68 deals with disclosing reasons for decisions.

12 Changing permit conditions

Imposing new conditions

(1) After giving a person a permit under section 11, the Minister may

impose a new permit condition by giving the person notice of the

condition. The notice must include the reasons for imposing the

new condition.

Removing or varying conditions

(2) The Minister may remove or vary a condition of the permit by

giving the person notice of the removal or variation. For a variation

of a condition, the notice must include the reasons for the variation.

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

Division 1 Primary offences

Section 13

16 Defence Trade Controls Bill 2011 No. , 2011

When new conditions or variations take effect

(3) The imposition of a new permit condition under subsection (1), or

the variation of a permit condition under subsection (2), takes

effect at the time specified in the notice, which must be at least 7

days after the day on which the notice is given.

(4) However, the notice may specify that the new permit condition or

the variation takes effect at the time the person receives the notice

if the Minister is satisfied that the new permit condition or

variation needs to take effect then for reasons of urgency.

Note 1:

Section 67 deals with giving notices under this Act.

Note 2:

Section 68 deals with disclosing reasons for decisions.

13 Breaching permit conditions

(1) A person commits an offence if:

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

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

Penalty: 60 penalty units.

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

Note:

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

(3) Section 15.2 of the Criminal Code (extended geographical

jurisdiction--category B) applies to an offence against

subsection (1).

14 Notice prohibiting activities

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

of the following activities in any circumstances or in particular

circumstances:

(a) supply to another person technology relating to goods, where

the technology is listed in the Defence and Strategic Goods

List;

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

Primary offences Division 1

Section 14

Defence Trade Controls Bill 2011 No. , 2011 17

(b) provide defence services to another person in relation to

goods, where the goods are listed in the Defence and

Strategic Goods List;

technology relating to goods, where the technology is listed

in the Defence and Strategic Goods List;

the activity would prejudice the security, defence or international

relations of Australia, the Minister may give the person a notice:

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

(e) prohibiting the person from doing the activity unless

conditions specified in the notice are complied with.

Note:

Section 67 deals with giving notices under this Act.

(2) A notice given to a person under subsection (1) must set out the

Minister's reasons for giving the notice.

Note:

Section 68 deals with disclosing reasons for decisions.

Period notice in force

(3) A notice given to a person under subsection (1) comes into force at

the time the person receives the notice. This subsection is subject

to subsection (5).

(4) A notice given to a person under subsection (1) remains in force

for the period specified in, or worked out in accordance with, the

notice (which must not be more than 12 months), unless revoked

earlier.

Later notices

(5) A notice may be given to a person under subsection (1) while an

earlier notice given to the person under subsection (1) is in force.

The later notice may be expressed to come into force at the time

the earlier notice ceases to be in force.

(6) Subsection (5) does not prevent a notice being given to a person

under subsection (1) after an earlier notice given to the person

under subsection (1) ceases to be in force.

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

Division 1 Primary offences

Section 14

18 Defence Trade Controls Bill 2011 No. , 2011

Notice not a legislative instrument

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

Revoking a notice

(8) The Minister may, by writing, revoke a notice given to a person

under subsection (1).

(9) The Minister must give the person notice of the revocation. The

revocation takes effect at the time the person receives the notice.

Note:

Section 67 deals with giving notices under this Act.

Offence

(10) A person commits an offence if:

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

(i) supplies technology relating to goods, where the

technology is listed in the Defence and Strategic Goods

List;

(ii) provides defence services in relation to goods, where

the goods are listed in the Defence and Strategic Goods

List;

(iii) provides defence services in relation to technology

relating to goods, where the technology is listed in the

Defence and Strategic Goods List; and

(b) the activity contravenes a notice, or a condition specified in a

notice, that is in force under subsection (1); and

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

both.

(11) Section 15.2 of the Criminal Code (extended geographical

jurisdiction--category B) applies to an offence against

subsection (10).

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

Brokering offences Division 2

Section 15

Defence Trade Controls Bill 2011 No. , 2011 19

Division 2--Brokering offences

15 Offence--arranging supplies and provision of defence services in

relation to the Defence and Strategic Goods List

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

(a) one of the following applies:

(i) the first person arranges for another person to supply

goods, where the goods are listed in the Defence and

Strategic Goods List and the supply is, or is to be, from

a place outside Australia to another place outside

Australia;

(ii) the first person arranges for another person to supply

technology relating to goods, where the technology is

listed in the Defence and Strategic Goods List and the

supply is, or is to be, from a place outside Australia to

another place outside Australia;

(iii) the first person arranges for another person to provide

defence services in relation to goods, where the goods

are listed in the Defence and Strategic Goods List and

the defence services are, or are to be, received at a place

outside Australia;

(iv) the first person arranges for another person to provide

defence services in relation to technology relating to

goods, where the technology is listed in the Defence and

Strategic Goods List and the defence services are, or are

to be, received at a place outside Australia; and

(b)

either:

(i) the first person does not hold a permit under section 16

authorising the arrangement; or

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

the first person holds under section 16.

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

both.

Exceptions

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

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

Division 2 Brokering offences

Section 15

20 Defence Trade Controls Bill 2011 No. , 2011

(a) the first person is a member of the Australian Defence Force,

an APS employee, a member or special member of the

Australian Federal Police or a member of the police force of

a State or Territory; and

(b) he or she does the arranging in the course of his or her duties

as such a person.

Note:

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

subsection (2): see subsection 13.3(3) of the Criminal Code.

(3) Subsection (1) does not apply in the circumstances prescribed by

the regulations for the purposes of this subsection.

Note:

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

subsection (3): see subsection 13.3(3) of the Criminal Code.

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

(a) the first person arranges for another person to supply goods,

or to supply technology relating to goods, where the supply

is, or is to be, from a place in a foreign country to another

place in that country; and

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

Wassenaar Arrangement.

Note:

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

subsection (4): see subsection 13.3(3) of the Criminal Code.

Geographical jurisdiction

(5) Section 15.2 of the Criminal Code (extended geographical

jurisdiction--category B) applies to an offence against

subsection (1).

Definitions

(6) In this section:

place includes:

(a) a vehicle, vessel or aircraft; and

(b) an area of water; and

Wassenaar Arrangement means the Wassenaar Arrangement on

Export Controls for Conventional Arms and Dual-Use Goods and

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

Brokering offences Division 2

Section 16

Defence Trade Controls Bill 2011 No. , 2011 21

Technologies, adopted in Vienna, Austria, on 11 and 12 July 1996,

as amended from time to time.

16 Permits for purposes of section 15

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

this section to:

(a) arrange for another person to supply goods, where the goods

are listed in the Defence and Strategic Goods List; or

(b) arrange for another person to supply technology relating to

goods, where the technology is listed in the Defence and

Strategic Goods List; or

relation to goods, where the goods are listed in the Defence

and Strategic Goods List; or

(d) arrange for another person to provide defence services in

relation to technology relating to goods, where the

technology is listed in the Defence and Strategic Goods List.

Note:

Section 66 sets out application requirements.

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

(a) be for more than one arrangement; and

(b) be for a particular arrangement, where the activity covered by

the arrangement is for a period described in the application.

Example 1: For paragraph (a)--a registered broker applies for a permit to arrange

for company A to supply goods and to arrange for company B to

supply technology relating to goods.

Example 2: For paragraph (b)--a registered broker applies for a permit to arrange

for company A to supply goods for a 3-year period.

Minister's decision

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

accordance with section 66, the Minister must decide whether or

not to give the broker a permit for each arrangement covered by the

application.

(4) The Minister may give the broker a permit for a specified

arrangement if the Minister is satisfied that the activity covered by

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

Division 2 Brokering offences

Section 16

22 Defence Trade Controls Bill 2011 No. , 2011

the arrangement would not prejudice the security, defence or

international relations of Australia.

Note:

Section 67 deals with giving permits under this Act.

(5) A permit given by the Minister may:

(a) be for more than one arrangement; and

(b) be for a specified arrangement, where the activity covered by

the arrangement is for a period specified in, or worked out in

accordance with, the permit.

(6) If the Minister refuses to give the broker a permit for an

arrangement covered by the application, the Minister must give the

broker notice of the refusal and the reasons for the refusal.

Note 1:

Section 67 deals with giving notices under this Act.

Note 2:

Section 68 deals with disclosing reasons for decisions.

Permit conditions

(7) A permit given to a registered broker is subject to any conditions

specified in the permit.

Note:

Section 17 deals with changing permit conditions.

Revoking a permit

(8) The Minister may, by writing, revoke a permit given to a registered

broker under this section.

Note:

See also subsection 23(3) (about automatic revocation of a permit

under this section upon cancellation of the broker's registration).

(9) However, the Minister may revoke the permit only if the Minister

is satisfied that any activity covered by an arrangement authorised

by the permit would prejudice the security, defence or international

relations of Australia.

(10) The Minister must give the broker notice of the revocation and the

reasons for the revocation. The revocation takes effect at the time

the broker receives the notice.

Note 1:

Section 67 deals with giving notices under this Act.

Note 2:

Section 68 deals with disclosing reasons for decisions.

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

Brokering offences Division 2

Section 17

Defence Trade Controls Bill 2011 No. , 2011 23

17 Changing permit conditions

Imposing new conditions

(1) After giving a registered broker a permit under section 16, the

Minister may impose a new permit condition by giving the broker

notice of the condition. The notice must include the reasons for

imposing the new condition.

Removing or varying conditions

(2) The Minister may remove or vary a condition of the permit by

giving the broker notice of the removal or variation. For a variation

of a condition, the notice must include the reasons for the variation.

When new conditions or variations take effect

(3) The imposition of a new permit condition under subsection (1), or

the variation of a permit condition under subsection (2), takes

effect at the time specified in the notice, which must be at least 7

days after the day on which the notice is given.

(4) However, the notice may specify that the new permit condition or

the variation takes effect at the time the broker receives the notice

if the Minister is satisfied that the new permit condition or

variation needs to take effect then for reasons of urgency.

Note 1:

Section 67 deals with giving notices under this Act.

Note 2:

Section 68 deals with disclosing reasons for decisions.

18 Breaching permit conditions

(1) A registered broker commits an offence if:

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

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

Penalty: 60 penalty units.

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

Note:

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

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

Registered brokers Division 3

Section 19

Defence Trade Controls Bill 2011 No. , 2011 25

Division 3--Registered brokers

19 Applying to be a registered broker

A person may apply to the Minister to be registered as a broker

under this Division.

Note 1:

Section 66 sets out application requirements.

Note 2:

Only a registered broker is able to obtain a permit under Division 2. A

person may commit an offence under that Division for engaging in

certain conduct without a permit.

20 Registering brokers

Minister's decision

(1) If a person makes an application under section 19 in accordance

with section 66, the Minister must decide whether or not to register

the person as a broker under this Division.

(2) The Minister must, in writing, register the person as a broker under

this Division if the Minister is satisfied that the person is a fit and

proper person.

(3) In determining whether the person is a fit and proper person, the

Minister must have regard to:

(a) any conviction of the person of an offence against a law of

the Commonwealth, a State, a Territory or a foreign country

punishable by imprisonment for 12 months or longer, if that

offence was committed within the 10 years immediately

before the application for registration; and

(b) if the person has been previously registered under this

Division--whether the person breached a condition of that

registration or whether that registration was cancelled; and

whether the person has breached a condition of that permit;

and

(d) the financial position of the person; and

(e) whether the application for registration contains information

that is false or misleading; and

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

Division 3 Registered brokers

Section 20

26 Defence Trade Controls Bill 2011 No. , 2011

(f) if the person is a body corporate--the following matters in

relation to a manager of the body corporate:

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

paragraph (a);

(ii) the financial position of the manager.

The Minister may have regard to any other matters that the

Minister considers appropriate.

(4) If the Minister is not satisfied that the person is a fit and proper

person, the Minister must refuse to register the person as a broker

under this Division.

Notice of decision

(5) The Minister must give the person notice of the Minister's decision

on the application. For a decision refusing registration, the notice

must set out the reasons for the refusal.

Note 1:

Section 67 deals with giving notices under this Act.

Note 2:

Section 68 deals with disclosing reasons for decisions.

Period of registration

(6) If the Minister registers the person as a broker under this Division,

the Minister must specify in the notice under subsection (5) the day

on which the registration begins. The registration is for a period of

5 years, unless cancelled earlier.

Note:

Section 21 deals with renewing registration and section 23 deals with

cancelling registration.

Conditions of registration

(7) A registered broker's registration is subject to any conditions

specified in the notice under subsection (5).

Note:

Section 22 deals with changing conditions of registration.

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

Registered brokers Division 3

Section 21

Defence Trade Controls Bill 2011 No. , 2011 27

21 Renewing registration

Application for renewal

(1) A registered broker may apply to the Minister to renew the

person's registration (the current registration).

Note:

Section 66 sets out application requirements.

(2) An application under subsection (1) must be made at least 3

months but not more than 6 months before the current registration

is due to end.

Minister's decision

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

accordance with subsection (2) and section 66, the Minister must

decide whether or not to renew the person's current registration.

(4) The Minister must, in writing, renew the person's current

registration if the Minister is satisfied that the person is a fit and

proper person.

(5) In determining whether a person is a fit and proper person, the

Minister must have regard to:

(a) any conviction of the person of an offence against a law of

the Commonwealth, a State, a Territory or a foreign country

punishable by imprisonment for 12 months or longer, if that

offence was committed within the 10 years immediately

before the application for renewal; and

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

registration; and

whether the person has breached a condition of that permit;

and

(d) the financial position of the person; and

(e) whether the application for renewal contains information that

is false or misleading; and

(f) if the person is a body corporate--the following matters in

relation to a manager of the body corporate:

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

Division 3 Registered brokers

Section 21

28 Defence Trade Controls Bill 2011 No. , 2011

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

paragraph (a);

(ii) the financial position of the manager.

The Minister may have regard to any other matters that the

Minister considers appropriate.

(6) If the Minister is not satisfied that the person is a fit and proper

person, the Minister must refuse to renew the person's current

registration.

Notice of decision

(7) The Minister must give the person notice of the Minister's decision

on the application. For a decision refusing renewal, the notice must

set out the reasons for the refusal.

Note 1:

Section 67 deals with giving notices under this Act.

Note 2:

Section 68 deals with disclosing reasons for decisions.

Minister renews registration before expiry of registration

(8) If the Minister renews the person's current registration before the

end of the period of that registration and that registration is not

cancelled before the end of that period:

(a) that registration is renewed for a period of 5 years beginning

on the day after the last day of the current registration, unless

cancelled earlier; and

(b) that registration is renewed subject to the conditions applying

to the current registration immediately before the renewal

begins.

Note:

Section 23 deals with cancelling registration and section 22 deals with

changing conditions of registration.

Minister does not renew registration before expiry of registration

(9) If the Minister has not made a decision on the application before

the end of the last day (the expiry day) of the current registration:

(a) that registration is taken to continue after the expiry day until

the person receives notice of the Minister's decision on the

application, unless the registration is cancelled earlier; and

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

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

Registered brokers Division 3

Section 22

Defence Trade Controls Bill 2011 No. , 2011 29

(i) that registration is renewed for a period of 5 years

beginning on the day after the expiry day, unless

cancelled earlier; and

(ii) the conditions applying to the current registration

immediately before the Minister's decision continue to

apply after the Minister's decision.

Note:

Section 23 deals with cancelling registration and section 22 deals with

changing conditions of registration.

Example: An individual's registration is due to end on 31 October (the expiry

day). On 1 June the individual applies to renew the registration. The

Minister has not decided the application by the end of 31 October.

The registration continues automatically past 31 October until the

Minister decides the application. The conditions applying to the

registration at the end of 31 October will continue to apply after

31 October and these may be changed under section 22.

On 1 December the Minister renews the individual's registration. The

registration is renewed for a period of 5 years beginning on

1 November.

The conditions applying to the registration immediately before the

Minister's decision on 1 December will continue to apply after that

decision.

Registration may be renewed more than once

(10) A registered broker's registration may be renewed more than once

under this section.

22 Changing registration conditions

Imposing new conditions

(1) After registering a person as a broker under this Division, the

Minister may impose a new condition on the broker's registration

by giving the broker notice of the condition. The notice must

include the reasons for imposing the new condition.

Removing or varying conditions

(2) The Minister may remove or vary a condition of a registered

broker's registration by giving the broker notice of the removal or

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

Division 3 Registered brokers

Section 23

30 Defence Trade Controls Bill 2011 No. , 2011

variation. For a variation of a condition, the notice must include the

reasons for the variation.

Note 1:

Section 67 deals with giving notices under this Act.

Note 2:

Section 68 deals with disclosing reasons for decisions.

23 Cancelling the registration of a broker

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

registered broker:

(a) if the Minister is satisfied that the broker has breached a

condition of the registration; or

(b) if the Minister is satisfied that the broker has breached a

condition of a permit given to the broker under this Part; or

Commonwealth, a State, a Territory or a foreign country

punishable by imprisonment for 12 months or longer; or

(d) if the Minister is satisfied that the broker's application under

section 19 for the registration, or an application by the broker

under subsection 21(1) to renew the registration, contained

information that was false or misleading; or

(e) in any other circumstances that the Minister considers

appropriate.

(2) The Minister must give the broker notice of the cancellation and

the reasons for the cancellation. The cancellation takes effect at the

time the broker receives the notice.

Note 1:

Section 67 deals with giving notices under this Act.

Note 2:

Section 68 deals with disclosing reasons for decisions.

Automatic revocation of permits

(3) If the Minister cancels a person's registration as a registered

broker, any permit held by the person under section 16 is taken to

be revoked at the time that cancellation takes effect.

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

Registered brokers Division 3

Section 24

Defence Trade Controls Bill 2011 No. , 2011 31

24 Register of Brokers

(1) The Secretary is to maintain a register, to be known as the Register

of Brokers, in which the Secretary includes the following details

for each registered broker:

(a) the name of the broker;

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

to conditions.

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

(3) The Register is to be made available for inspection on the

Department's website.

(4) The Register is not a legislative instrument.

25 Extended meaning of conviction

A reference in this Division to a person convicted of an offence

includes a reference to a person in respect of whom an order has

been made relating to the offence under:

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

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

foreign country.

Note:

Section 19B of the Crimes Act 1914 empowers a court that has found

a person to have committed an offence to take action without

proceeding to record a conviction.

Part 3 Defense Trade Cooperation Treaty

Division 1 Preliminary

Section 26

32 Defence Trade Controls Bill 2011 No. , 2011

Part 3--Defense Trade Cooperation Treaty

Division 1--Preliminary

26 Simplified outline

The following is a simplified outline of this Part:

�

This Part implements the Defense Trade Cooperation Treaty

between Australia and the United States of America.

�

There is a process for approving bodies corporate as members

of the Australian Community referred to in Article 4(1)(c) of

the Treaty and for suspending or cancelling approvals.

�

There are offences relating to Article 3(1) US Defence

Articles and Article 3(3) US Defence Articles.

�

There are provisions dealing with the transition to the Treaty.

Defense Trade Cooperation Treaty Part 3

Membership of the Australian Community Division 2

Section 27

Defence Trade Controls Bill 2011 No. , 2011 33

Division 2--Membership of the Australian Community

27 Approval of bodies corporate as members of the Australian

Community

(1) A person who is a body corporate may apply to the Minister for

approval as a member of the Australian Community referred to in

Article 4(1)(c) of the Defense Trade Cooperation Treaty.

Note 1:

Section 66 sets out application requirements.

Note 2:

The offences in section 10 (about supplies and provision of defence

services relating to the Defence and Strategic Goods List) may not

apply to the holder of an approval.

Minister's decision

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

accordance with section 66, the Minister must, in writing, approve,

or refuse to approve, the person as a member of the Australian

Community.

(3) In deciding whether to approve the person as a member of the

Australian Community, the Minister must have regard to:

(a) whether the person has access to a facility that is included, or

that is capable of being included, on a list, managed by the

Department, of facilities accredited for storing and handling

classified information and material; and

(b) any conviction of the person of:

(i) an offence against this Act or the Weapons of Mass

Destruction (Prevention of Proliferation) Act 1995; or

(ii) an offence against the Customs Act 1901 or regulations

made under that Act; or

(iii) an offence against the Arms Export Control Act of the

United States of America (22 United States Code,

Chapter 39) or the International Traffic in Arms

Regulations (22 Code of Federal Regulations,

Parts 120-130) made under that Act;

if that offence was committed within the 10 years

immediately before the application for approval; and

Part 3 Defense Trade Cooperation Treaty

Division 2 Membership of the Australian Community

Section 27

34 Defence Trade Controls Bill 2011 No. , 2011

prejudice the security, defence or international relations of

Australia; and

(d) whether the application for approval contains information

that is false or misleading; and

(e) the extent of any foreign ownership or control (whether direct

or indirect) of the body corporate; and

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

corporate:

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

paragraph (b);

(ii) whether the manager is an Australian citizen.

The Minister may have regard to any other matters that the

Minister considers appropriate.

(4) The Minister must not approve the person as a member of the

Australian Community unless the Minister is satisfied that the

Government of the United States of America has agreed in writing

to the approval being given.

(5) If the Minister approves the person as a member of the Australian

Community, the Minister must give the person the approval.

Note 1:

Section 67 deals with giving approvals under this Act.

Note 2:

Section 28 deals with approval conditions.

(6) If the Minister refuses to approve the person as a member of the

Australian Community, the Minister must give the person notice of

the refusal and the reasons for the refusal.

Note 1:

Section 67 deals with giving notices under this Act.

Note 2:

Section 68 deals with disclosing reasons for decisions.

When approval begins

(7) If the Minister approves the person as a member of the Australian

Community, the Minister must specify in the approval the day on

which the approval begins.

Defense Trade Cooperation Treaty Part 3

Membership of the Australian Community Division 2

Section 28

Defence Trade Controls Bill 2011 No. , 2011 35

Extended meaning of conviction

(8) A reference in this section to a person convicted of an offence

includes a reference to a person in respect of whom an order has

been made relating to the offence under:

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

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

America.

Note:

Section 19B of the Crimes Act 1914 empowers a court that has found

a person to have committed an offence to take action without

proceeding to record a conviction.

Approval not a legislative instrument

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

28 Approval conditions

Conditions of an approval

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

(a) any conditions specified in the approval; and

(b) a condition that the person must allow an authorised officer,

in accordance with section 41, to enter any premises referred

to in that section for the purpose of finding out whether the

person has complied with this Part or Part 6 or another

condition of the approval; and

Note:

Part 4 sets out the monitoring powers that an authorised officer

may exercise in relation to those premises.

(i) access to Article 3(1) US Defence Articles or Article

3(3) US Defence Articles in the person's possession,

custody or control; or

(ii) access to technology relating to original goods, being

technology in the person's possession, custody or

control; and

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

(i) investigating or reporting the loss, theft or destruction of

Article 3(1) US Defence Articles or Article 3(3) US

Part 3 Defense Trade Cooperation Treaty

Division 2 Membership of the Australian Community

Section 28

36 Defence Trade Controls Bill 2011 No. , 2011

Defence Articles in the person's possession, custody or

control; or

(ii) investigating or reporting the loss, theft or destruction of

technology relating to original goods, being technology

in the person's possession, custody or control; and

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

(i) the marking, handling or storing of Article 3(1) US

Defence Articles or Article 3(3) US Defence Articles in

the person's possession, custody or control; or

(ii) the marking, handling or storing of technology relating

to original goods, being technology in the person's

possession, custody or control; and

(f) in relation to defence services provided by the person in

relation to goods that are an Article 3(1) US Defence Article

or an Article 3(3) US Defence Article or to technology

relating to original goods--any conditions prescribed by the

regulations in relation to the provision, by the person to the

recipient of the services, of documentation:

(i) for defence services provided in relation to goods that

are an Article 3(1) US Defence Article or an Article

3(3) US Defence Article--identifying the goods; or

(ii) for defence services provided in relation to technology

relating to original goods--identifying the technology

and the goods; and

(g) any conditions prescribed by the regulations in relation to the

person giving reports relating to the person's compliance

with this Act and the regulations; and

(h) any conditions prescribed by the regulations in relation to

Australian Defence Articles (within the meaning of the

regulations) in the person's possession, custody or control.

Changing approval conditions

(2) After giving the approval, the Minister may impose a new approval

condition by giving the person notice of the condition. The notice

must include the reasons for imposing the new condition.

(3) The Minister may remove or vary a condition of the approval

imposed under paragraph (1)(a) or subsection (2) by giving the

Defense Trade Cooperation Treaty Part 3

Membership of the Australian Community Division 2

Section 28

Defence Trade Controls Bill 2011 No. , 2011 37

person notice of the removal or variation. For a variation of a

condition, the notice must include the reasons for the variation.

Note 1:

Section 67 deals with giving notices under this Act.

Note 2:

Section 68 deals with disclosing reasons for decisions.

Ordinary offence

(4) A person commits an offence if:

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

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

(d) the condition is one covered by paragraph (1)(c), (d), (e) or

(f) of this section.

Penalty: 600 penalty units.

Strict liability offence

(5) A person commits an offence if:

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

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

Penalty: 300 penalty units.

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

Note:

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

Geographical jurisdiction

(7) Section 15.2 of the Criminal Code (extended geographical

jurisdiction--category B) applies to an offence against

subsection (4) or (5).

Notice not a legislative instrument

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

Part 3 Defense Trade Cooperation Treaty

Division 2 Membership of the Australian Community

Section 29

38 Defence Trade Controls Bill 2011 No. , 2011

29 Suspending an approval

(1) The Minister may, by writing, suspend an approval given to a

person under section 27:

(a) if the Minister reasonably believes that the person has

contravened a provision of this Act; or

(b) if the Minister reasonably believes that the person has

breached a condition of the approval; or

approval prejudices the security, defence or international

relations of Australia; or

(d) if the Minister is satisfied that the person's application under

section 27 for the approval contained information that was

false or misleading; or

(e) if the Minister is satisfied that it is appropriate to do so

because of a change in any of the circumstances based on

which the Minister gave the approval; or

(f) in any other circumstances prescribed by the regulations for

the purposes of this paragraph.

(2) The Minister must give the person notice of the suspension and the

reasons for the suspension. The suspension takes effect at the time

the person receives the notice.

Note 1:

Section 67 deals with giving notices under this Act.

Note 2:

Section 68 deals with disclosing reasons for decisions.

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

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

days); or

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

Lifting of suspension

(4) If 2 or more conditions are specified for the lifting of the

suspension, one of them may be that a specified period of

suspension has ended (which must not be more than 60 days).

(5)

If:

Defense Trade Cooperation Treaty Part 3

Membership of the Australian Community Division 2

Section 30

Defence Trade Controls Bill 2011 No. , 2011 39

(a) the Minister specifies one or more conditions for the lifting

of the suspension; and

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

the Minister may, by notice given to the person, lift the suspension.

The suspension is lifted at the time the person receives the notice.

Note:

Section 67 deals with giving notices under this Act.

Effect of suspension

(6) Subject to subsection (7), the holder of an approval under

section 27 that is suspended under this section is taken not to hold

the approval at any time while the suspension has effect.

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

suspended under this section:

(a) for the purposes of the application of sections 28, 31, 32 and

33, Part 4 and subsection 58(3) to the body corporate--the

body corporate is taken to continue to hold the approval

while the suspension has effect; and

(b) for the purposes of the application of sections 31, 32 and 33

to a person referred to in paragraph (c) of the definition of

Australian Community member in subsection 4(1)--the

body corporate is taken to continue to hold the approval

while the suspension has effect.

(8) An approval under section 27 may be cancelled under section 30

even while it is suspended under this section.

Non-legislative instruments

(9) The following are not legislative instruments:

(a) a suspension under this section;

(b) a notice under subsection (5).

30 Cancelling an approval

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

under section 27:

(a) if the Minister reasonably believes that the person has

contravened a provision of this Act; or

Part 3 Defense Trade Cooperation Treaty

Division 2 Membership of the Australian Community

Section 30

40 Defence Trade Controls Bill 2011 No. , 2011

(b) if the Minister reasonably believes that the person has

breached a condition of the approval; or

approval prejudices the security, defence or international

relations of Australia; or

(d) if the Minister is satisfied that the person's application under

section 27 for the approval contained information that was

false or misleading; or

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

approval; or

(f) if the Minister is satisfied that it is appropriate to do so

because of a change in any of the circumstances based on

which the Minister gave the approval; or

(g) in any other circumstances prescribed by the regulations for

the purposes of this paragraph.

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

the reasons for the cancellation. The cancellation takes effect at the

time the person receives the notice.

Note 1:

Section 67 deals with giving notices under this Act.

Note 2:

Section 68 deals with disclosing reasons for decisions.

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

Defense Trade Cooperation Treaty Part 3

Main offences Division 3

Section 31

Defence Trade Controls Bill 2011 No. , 2011 41

Division 3--Main offences

31 US Defence Articles listed in the Defense Trade Cooperation

Munitions List

Dealings outside Australia and the USA

(1) An Australian Community member (the supplier) commits an

offence if:

(a) the supplier supplies goods, or supplies technology relating to

goods, where the supply is to a place that is outside Australia

and is outside the United States of America; and

(b) the supply is of goods that are an Article 3(1) US Defence

Article or an Article 3(3) US Defence Article or the supply is

of technology relating to original goods; and

the supplier and the supply; and

(d) at the time of the supply, the following is listed in Part 1 of

the Defense Trade Cooperation Munitions List:

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

relating to original goods--the original goods;

(ii) if the supply is of incorporated goods--any of the

original goods incorporated in the incorporated goods.

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

both.

Note:

See also section 35 (about transition to the Defense Trade Cooperation

Treaty).

(2) An Australian Community member (the provider) commits an

offence if:

(a) the provider provides defence services in relation to goods or

in relation to technology relating to goods, where the defence

services are received at a place that is outside Australia and is

outside the United States of America; and

(b) the defence services are provided in relation to goods that are

an Article 3(1) US Defence Article or an Article 3(3) US

Defence Article or the defence services are provided in

relation to technology relating to original goods; and

Part 3 Defense Trade Cooperation Treaty

Division 3 Main offences

Section 31

42 Defence Trade Controls Bill 2011 No. , 2011

the provider and the provision of the defence services; and

(d) at the time of the provision of the defence services, the

following is listed in Part 1 of the Defense Trade Cooperation

Munitions List:

(i) if the defence services are provided in relation to

original goods or in relation to technology relating to

original goods--the original goods;

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

incorporated goods--any of the original goods

incorporated in the incorporated goods.

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

both.

Note:

See also section 35 (about transition to the Defense Trade Cooperation

Treaty).

Dealings in Australia or the USA outside the Treaty framework

(3) An Australian Community member (the supplier) commits an

offence if:

(a) the supplier supplies goods, or supplies technology relating to

goods, where the supply is to a place in Australia or in the

United States of America; and

(b) the supply is of goods that are an Article 3(1) US Defence

Article or an Article 3(3) US Defence Article or the supply is

of technology relating to original goods; and

(i)

the

Commonwealth;

(ii) an Australian Community member;

(iii) an Australian Community facility;

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

(d) there is no notice in force under subsection (8) in relation to

the supplier and the supply; and

(e) at the time of the supply, the following is listed in Part 1 of

the Defense Trade Cooperation Munitions List:

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

relating to original goods--the original goods;

Defense Trade Cooperation Treaty Part 3

Main offences Division 3

Section 31

Defence Trade Controls Bill 2011 No. , 2011 43

(ii) if the supply is of incorporated goods--any of the

original goods incorporated in the incorporated goods.

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

both.

Note:

See also section 35 (about transition to the Defense Trade Cooperation

Treaty).

(4) An Australian Community member (the provider) commits an

offence if:

(a) the provider provides defence services in relation to goods or

in relation to technology relating to goods, where the defence

services are received at a place in Australia or in the United

States of America; and

(b) the defence services are provided in relation to goods that are

an Article 3(1) US Defence Article or an Article 3(3) US

Defence Article or the defence services are provided in

relation to technology relating to original goods; and

following:

(i)

the

Commonwealth;

(ii) an Australian Community member;

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

(d) there is no notice in force under subsection (8) in relation to

the provider and the provision of the defence services; and

(e) at the time of the provision of the defence services, the

following is listed in Part 1 of the Defense Trade Cooperation

Munitions List:

(i) if the defence services are provided in relation to

original goods or in relation to technology relating to

original goods--the original goods;

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

incorporated goods--any of the original goods

incorporated in the incorporated goods.

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

both.

Note:

See also section 35 (about transition to the Defense Trade Cooperation

Treaty).

Part 3 Defense Trade Cooperation Treaty

Division 3 Main offences

Section 31

44 Defence Trade Controls Bill 2011 No. , 2011

Dealings in Australia or the USA within the Treaty framework

(5) An Australian Community member (the supplier) commits an

offence if:

(a) the supplier supplies goods, or supplies technology relating to

goods, where the supply is to:

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

and

(ii) the Commonwealth, an Australian Community member,

an Australian Community facility or a member of the

United States Community; and

(b) the supply is of goods that are an Article 3(1) US Defence

Article or an Article 3(3) US Defence Article or the supply is

of technology relating to original goods; and

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

(b) or (c) of the Defense Trade Cooperation Treaty,

being an activity that is publicly identified in

accordance with paragraph (5) of Section 2 of the

Implementing Arrangements;

(ii) the supply is for an activity referred to in Article 3(1)(d)

of the Defense Trade Cooperation Treaty, being an

activity that is open to participation by Australian

Community members as mentioned in paragraph (1)(b)

of Section 3 of the Implementing Arrangements; and

(d) there is no notice in force under subsection (8) in relation to

the supplier and the supply; and

(e) at the time of the supply, the following is listed in Part 1 of

the Defense Trade Cooperation Munitions List:

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

relating to original goods--the original goods;

(ii) if the supply is of incorporated goods--any of the

original goods incorporated in the incorporated goods.

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

both.

Note:

See also section 35 (about transition to the Defense Trade Cooperation

Treaty).

Defense Trade Cooperation Treaty Part 3

Main offences Division 3

Section 31

Defence Trade Controls Bill 2011 No. , 2011 45

(6) An Australian Community member (the provider) commits an

offence if:

(a) the provider provides defence services in relation to goods or

in relation to technology relating to goods, where the defence

services are received:

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

America; and

(ii) by the Commonwealth, an Australian Community

member or a member of the United States Community;

and

(b) the defence services are provided in relation to goods that are

an Article 3(1) US Defence Article or an Article 3(3) US

Defence Article or the defence services are provided in

relation to technology relating to original goods; and

(i) the defence services are for an activity referred to in

Article 3(1)(a), (b) or (c) of the Defense Trade

Cooperation Treaty, being an activity that is publicly

identified in accordance with paragraph (5) of Section 2

of the Implementing Arrangements;

(ii) the defence services are for an activity referred to in

Article 3(1)(d) of the Defense Trade Cooperation

Treaty, being an activity that is open to participation by

Australian Community members as mentioned in

paragraph (1)(b) of Section 3 of the Implementing

Arrangements; and

(d) there is no notice in force under subsection (8) in relation to

the provider and the provision of the defence services; and

(e) at the time of the provision of the defence services, the

following is listed in Part 1 of the Defense Trade Cooperation

Munitions List:

(i) if the defence services are provided in relation to

original goods or in relation to technology relating to

original goods--the original goods;

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

incorporated goods--any of the original goods

incorporated in the incorporated goods.

Part 3 Defense Trade Cooperation Treaty

Division 3 Main offences

Section 31

46 Defence Trade Controls Bill 2011 No. , 2011

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

both.

Note:

See also section 35 (about transition to the Defense Trade Cooperation

Treaty).

Exception--regulations

(7) Subsection (1), (2), (3), (4), (5) or (6) does not apply in the

circumstances prescribed by the regulations for the purposes of this

subsection.

Note:

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

subsection (7): see subsection 13.3(3) of the Criminal Code.

Notice approving supply or provision of defence services

(8) The Minister may, by notice given to an Australian Community

member, approve one or more supplies, or approve the provision of

one or more defence services, specified in the notice.

Note:

Section 67 deals with giving notices under this Act.

Geographical jurisdiction

(9) Section 15.4 of the Criminal Code (extended geographical

jurisdiction--category D) applies to an offence against this section.

Notice not a legislative instrument

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

Definition

(11) In this section:

place includes:

(a) a vehicle, vessel or aircraft; and

(b) an area of water; and

Defense Trade Cooperation Treaty Part 3

Main offences Division 3

Section 32

Defence Trade Controls Bill 2011 No. , 2011 47

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

Cooperation Treaty

Dealings in US Defence Articles prior to authorisation

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

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

goods; and

(b) the supply is of goods that are an Article 3(1) US Defence

Article or an Article 3(3) US Defence Article or the supply is

of technology relating to original goods; and

the Defense Trade Cooperation Munitions List:

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

relating to original goods--the original goods;

(ii) if the supply is of incorporated goods--any of the

original goods incorporated in the incorporated goods;

and

(d) at the time of the supply, there is neither a licence or other

authorisation granted by the Government of the United States

of America, nor a notice under subsection (4), in force in

relation to the Australian Community member and in relation

to:

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

(ii) if the supply is of incorporated goods--each of the

original goods incorporated in the incorporated goods

and listed as described in subparagraph (c)(ii); or

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

goods--the technology.

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

both.

Note:

See also section 35 (about transition to the Defense Trade Cooperation

Treaty).

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

(a) the member provides defence services in relation to goods or

in relation to technology relating to goods; and

Part 3 Defense Trade Cooperation Treaty

Division 3 Main offences

Section 32

48 Defence Trade Controls Bill 2011 No. , 2011

(b) the defence services are provided in relation to goods that are

an Article 3(1) US Defence Article or an Article 3(3) US

Defence Article or the defence services are provided in

relation to technology relating to original goods; and

following is listed in Part 2 of the Defense Trade Cooperation

Munitions List:

(i) if the defence services are provided in relation to

original goods or in relation to technology relating to

original goods--the original goods;

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

incorporated goods--any of the original goods

incorporated in the incorporated goods; and

(d) at the time of the provision of the defence services, there is

neither a licence or other authorisation granted by the

Government of the United States of America, nor a notice

under subsection (4), in force in relation to the Australian

Community member and in relation to:

(i) if the defence service are provided in relation to original

goods--the original goods; or

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

incorporated goods--each of the original goods

incorporated in the incorporated goods and listed as

described in subparagraph (c)(ii); or

(iii) if the defence services are provided in relation to

technology relating to original goods--the technology.

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

both.

Note:

See also section 35 (about transition to the Defense Trade Cooperation

Treaty).

Control of US Defence Articles after authorisation

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

(a) the member has goods, or technology relating to goods, in the

member's possession, custody or control; and

(b) the goods in the member's possession, custody or control are

an Article 3(1) US Defence Article or an Article 3(3) US

Defense Trade Cooperation Treaty Part 3

Main offences Division 3

Section 32

Defence Trade Controls Bill 2011 No. , 2011 49

Defence Article or the technology in the member's

possession, custody or control is technology relating to

original goods; and

Cooperation Munitions List:

(i) if the goods in the member's possession, custody or

control are original goods or the technology in the

member's possession, custody or control is technology

relating to original goods--the original goods;

(ii) if the goods in the member's possession, custody or

control are incorporated goods--any of the original

goods incorporated in the incorporated goods; and

(d) a notice under subsection (4) is in force in relation to the

Australian Community member and in relation to:

(i) if the goods in the member's possession, custody or

control are original goods--the original goods; or

(ii) if the goods in the member's possession, custody or

control are incorporated goods--any of the original

goods incorporated in the incorporated goods; or

(iii) if the technology in the member's possession, custody

or control is technology relating to original goods--the

technology; and

(e) the Australian Community member contravenes a condition

specified in the notice.

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

both.

Note:

See also section 35 (about transition to the Defense Trade Cooperation

Treaty).

Notices

(4) The Minister may give an Australian Community member a notice

in relation to:

(a) specified goods; or

(b) specified technology relating to specified goods.

The notice may specify one or more conditions that apply in

relation to the Australian Community member and the goods

Defense Trade Cooperation Treaty Part 3

Ministerial directions Division 4

Section 33

Defence Trade Controls Bill 2011 No. , 2011 51

Division 4--Ministerial directions

33 Ministerial directions--avoiding prejudice to the security,

defence or international relations of Australia

(1) The Minister may, by writing, direct all Australian Community

members not to:

(a) supply to a specified member of the United States

Community goods listed in the Defence and Strategic Goods

List, or technology relating to such goods, that are neither an

Article 3(1) US Defence Article nor an Article 3(3) US

Defence Article; and

(b) provide to a specified member of the United States

Community defence services in relation to goods listed in the

Defence and Strategic Goods List, or in relation to

technology relating to such goods, that are neither an Article

3(1) US Defence Article nor an Article 3(3) US Defence

Article.

(2) The Minister may give a direction under subsection (1) only if the

Minister is satisfied that it is necessary to do so in order to avoid

prejudice to the security, defence or international relations of

Australia.

Revocation

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

subsection (1).

Notice to approval holders

(4) The Minister must give each person who holds an approval under

section 27 notice of the following:

(a) a direction under subsection (1);

(b) a revocation under subsection (3).

Note:

Section 67 deals with giving notices under this Act.

Part 3 Defense Trade Cooperation Treaty

Division 4 Ministerial directions

Section 33

52 Defence Trade Controls Bill 2011 No. , 2011

Publication

(5) The Minister must publish the following on the Department's

website:

(a) a direction under subsection (1);

(b) a revocation under subsection (3).

Offence

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

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

provides defence services in relation to goods or in relation to

technology relating to goods; and

(b) the supply, or the provision of the defence services,

contravenes a direction that is in force under subsection (1);

and

(d) there is no notice in force under subsection (7) in relation to

the member and the supply or the provision of the defence

services (as the case may be).

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

both.

Notice approving supply or provision of defence services

(7) The Minister may, by notice given to an Australian Community

member, approve one or more supplies, or approve the provision of

one or more defence services, specified in the notice.

Note:

Section 67 deals with giving notices under this Act.

Geographical jurisdiction

(8) Section 15.4 of the Criminal Code (extended geographical

jurisdiction--category D) applies to an offence against

subsection (6).

Non-legislative instruments

(9) The following are not legislative instruments:

Defense Trade Cooperation Treaty Part 3

Ministerial directions Division 4

Section 34

Defence Trade Controls Bill 2011 No. , 2011 53

(a) a direction under subsection (1);

(b) a notice under subsection (7).

34 Ministerial directions--suspension or cancellation of approvals

Suspension of approvals

(1) If under Division 2 the Minister suspends an approval given to a

person under section 27, the Minister may give the person a notice

directing the person to:

(a) take specified action; or

(b) refrain from taking specified action;

in relation to either or both of the following:

Articles in the person's possession, custody or control at the

time the suspension takes effect;

(d) technology relating to original goods, being technology in the

person's possession, custody or control at the time the

suspension takes effect.

Note:

Section 67 deals with giving notices under this Act.

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

the time the person receives the notice.

(3) A notice given to a person under subsection (1) ceases to be in

force once the suspension ceases to have effect.

Cancellation of approvals

(4) If under Division 2 the Minister cancels an approval given to a

person under section 27, the Minister may give the person a notice

directing the person to:

(a) take specified action; or

(b) refrain from taking specified action;

in relation to either or both of the following:

Articles in the person's possession, custody or control at the

time the cancellation takes effect;

Part 3 Defense Trade Cooperation Treaty

Division 4 Ministerial directions

Section 34

54 Defence Trade Controls Bill 2011 No. , 2011

(d) technology relating to original goods, being technology in the

person's possession, custody or control at the time the

cancellation takes effect.

Note:

Section 67 deals with giving notices under this Act.

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

the time the person receives the notice.

(6) The Minister may, by writing, revoke a notice given to a person

under subsection (4).

(7) The Minister must give the person notice of the revocation. The

revocation takes effect at the time the person receives the notice.

Note:

Section 67 deals with giving notices under this Act.

Offence

(8) A person commits an offence if:

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

force; and

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

Penalty: 12,500 penalty units.

(9) Section 15.2 of the Criminal Code (extended geographical

jurisdiction--category B) applies to an offence against

subsection (8).

Notice not a legislative instrument

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

Defense Trade Cooperation Treaty Part 3

Other matters Division 5

Section 35

Defence Trade Controls Bill 2011 No. , 2011 55

Division 5--Other matters

35 Transition to the Defense Trade Cooperation Treaty

(1) This section applies if:

(a) a person who is an Australian Community member received

(at any time before or after the person became an Australian

Community member) goods (the transition goods), or

technology (the transition technology) relating to goods,

from a member of the United States Community; and

(b) the member of the United States Community provided the

goods or technology under a licence or other authorisation

granted by the Government of the United States of America;

and

subsection (2).

Note:

Section 66 sets out application requirements.

Approving transition to Treaty

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

accordance with section 66 and the Minister is satisfied that the

requirements prescribed by the regulations for the purposes of this

subsection are satisfied in relation to the person, the Minister may

give the person a notice specifying one or more of the following:

(a) the transition goods are taken to be an Article 3(1) US

Defence Article within the meaning of subsection 5(1);

(b) the transition goods are taken to be an Article 3(3) US

Defence Article within the meaning of subsection 5(4);

an Article 3(1) US Defence Article within the meaning of

subsection 5(1);

(d) the transition technology is taken to be technology relating to

an Article 3(3) US Defence Article within the meaning of

subsection 5(4).

Note 1:

Goods incorporating transition goods are also an Article 3(1) US

Defence Article or an Article 3(3) US Defence Article: see

subsections 5(2) and (5).

Note 2:

Section 67 deals with giving notices under this Act.

Part 3 Defense Trade Cooperation Treaty

Division 5 Other matters

Section 36

56 Defence Trade Controls Bill 2011 No. , 2011

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

the time the person receives the notice.

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

Refusing to approve transition to Treaty

(5) If the Minister refuses to give the person a notice under

subsection (2), the Minister must give the person notice of the

refusal and the reasons for the refusal.

Note 1:

Section 67 deals with giving notices under this Act.

Note 2:

Section 68 deals with disclosing reasons for decisions.

Notice not a legislative instrument

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

36 Defense Trade Cooperation Munitions List

(1) The Minister must make a document to be known as the Defense

Trade Cooperation Munitions List.

(2) The document must contain 2 Parts.

(3) Part 1 is to contain a list of goods that are within the scope of the

Defense Trade Cooperation Treaty. The goods listed in Part 1 must

be either or both of the following:

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

(b) goods listed in the United States Munitions List referred to in

Article 1(1)(n) of the Defense Trade Cooperation Treaty.

(4) Part 2 is to contain a list of goods that are exempt from the scope

of the Defense Trade Cooperation Treaty.

(5) The document made under subsection (1) is a legislative

instrument, but section 42 (disallowance) of the Legislative

Instruments Act 2003 does not apply to the document.

Monitoring powers Part 4

Preliminary Division 1

Section 37

Defence Trade Controls Bill 2011 No. , 2011 57

Part 4--Monitoring powers

Division 1--Preliminary

37 Simplified outline

The following is a simplified outline of this Part:

�

If a person holds an approval under section 27, an authorised

officer may enter certain premises at any reasonable time of

day for the purpose of finding out whether the person has

complied with Part 3 or 6 or a condition of the approval.

�

The authorised officer must give the person at least 24 hours'

notice of the officer's intention to enter the premises.

�

An authorised officer who enters premises may exercise

monitoring powers. The authorised officer may be assisted by

other persons if that assistance is necessary and reasonable.

38 No limit on section 71

This Part does not limit section 71 (forfeiture).

Part 4 Monitoring powers

Division 2 Appointment of authorised officers and issue of identity cards

Section 39

58 Defence Trade Controls Bill 2011 No. , 2011

Division 2--Appointment of authorised officers and issue

of identity cards

39 Appointment of authorised officers

(1) The Secretary may, in writing, appoint any of the following

persons as an authorised officer for the purposes of this Part:

(a) a member of the Australian Defence Force who holds the

rank of warrant officer or a higher rank;

(b) an APS employee who holds an APS 6 position, or an

equivalent or higher position, in the Department.

(2) The Secretary must not appoint a person as an authorised officer

unless the Secretary is satisfied that the person has suitable

qualifications and experience to properly exercise the powers of an

authorised officer.

(3) An authorised officer must, in performing functions or exercising

powers as an authorised officer, comply with any directions of the

Secretary.

(4) If a direction is given under subsection (3) in writing, the direction

is not a legislative instrument.

40 Identity cards

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

Form of identity card

(2) The identity card must:

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

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

Offence

(3) A person commits an offence if:

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

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

Monitoring powers Part 4

Appointment of authorised officers and issue of identity cards Division 2

Section 40

Defence Trade Controls Bill 2011 No. , 2011 59

identity card to the Secretary.

Penalty: 5 penalty units.

Note:

Section 14.1 of the Criminal Code (standard geographical jurisdiction)

applies to an offence against subsection (3).

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

Note:

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

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

destroyed.

Note:

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

subsection (5): see subsection 13.3(3) of the Criminal Code.

Authorised officer must carry card

(6) An authorised officer must carry his or her identity card at all times

when performing functions or exercising powers as an authorised

officer.

Part 4 Monitoring powers

Division 3 Powers of authorised officers

Section 41

60 Defence Trade Controls Bill 2011 No. , 2011

Division 3--Powers of authorised officers

41 Authorised officer may enter premises

(1) If a person holds an approval under section 27, then, for the

purpose of finding out whether the person has complied with Part 3

or 6 or a condition of the approval, an authorised officer may:

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

(i) any premises the person specified in the application for

approval as premises at which Article 3(1) US Defence

Articles or Article 3(3) US Defence Articles may be

kept;

(ii) any premises the person subsequently informs the

Minister in writing are premises at which Article 3(1)

US Defence Articles or Article 3(3) US Defence

Articles are being, or may be, kept;

(iii) any premises in Australia used, wholly or partly, by the

person for the purposes of business operations of the

person, except premises used as a place of residence;

and

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

(2) However, an authorised officer must not enter premises under

subsection (1) unless the officer has given the holder of the

approval at least 24 hours' notice of the officer's intention to do so.

42 Monitoring powers of authorised officers

(1) The following are the monitoring powers that an authorised officer

may exercise in relation to premises under section 41:

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

premises;

(b) the power to inspect, examine, take measurements of or

conduct tests on any thing on the premises;

recording of the premises or any thing on the premises;

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

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

Monitoring powers Part 4

Powers of authorised officers Division 3

Section 42

Defence Trade Controls Bill 2011 No. , 2011 61

(f) the power to take onto the premises such equipment and

materials as the authorised officer requires for the purpose of

exercising powers set out in this section in relation to the

premises;

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

Powers relating to electronic equipment

(2) The monitoring powers include the power to operate electronic

equipment on the premises to see whether:

(a) the equipment; or

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

(i) is on the premises; and

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

contains information that is relevant to finding out whether the

holder of the approval concerned has complied with Part 3 or 6 or a

condition of the approval.

(3) The monitoring powers include the following powers in relation to

information described in subsection (2) found in the exercise of the

power under that subsection:

(a) the power to operate electronic equipment on the premises to

put the information in documentary form and remove the

documents so produced from the premises;

(b) the power to operate electronic equipment on the premises to

transfer the information to a disk, tape or other storage device

that:

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

(ii) is on the premises and the use of which for that purpose

has been agreed in writing by the occupier of the

premises or another person who apparently represents

the occupier;

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

premises.

(4) An authorised officer may operate electronic equipment as

mentioned in subsection (2) or (3) only if he or she believes on

Part 4 Monitoring powers

Division 3 Powers of authorised officers

Section 43

62 Defence Trade Controls Bill 2011 No. , 2011

reasonable grounds that the operation of the equipment can be

carried out without damage to the equipment.

Securing things

(5) The monitoring powers include the power to secure a thing for a

period not exceeding 24 hours if:

(a) the thing is found during the exercise of monitoring powers

on the premises; and

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

(i) the thing affords evidence of the commission of an

offence against Part 3 or 6; and

(ii) it is necessary to secure the thing in order to prevent it

from being concealed, lost or destroyed before a warrant

to seize the thing is obtained; and

(iii) the circumstances are serious and urgent.

Note: The

Crimes Act 1914 contains provisions allowing the issue of

warrants to seize things.

43 Authorised officer may require person to answer questions or

produce documents

Requirement to answer questions

(1)

If:

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

(b) the authorised officer believes on reasonable grounds that a

person present at the premises is capable of answering a

question relating to whether the holder of the approval

concerned has complied with Part 3 or 6 or a condition of the

approval;

the authorised officer may require the person to answer the

question put by the authorised officer.

Requirement to produce documents

(2)

If:

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

Monitoring powers Part 4

Powers of authorised officers Division 3

Section 44

Defence Trade Controls Bill 2011 No. , 2011 63

(b) the authorised officer believes on reasonable grounds that a

person present at the premises is capable of producing a

document relating to whether the holder of the approval

concerned has complied with Part 3 or 6 or a condition of the

approval;

the authorised officer may require the person to produce the

document requested by the authorised officer.

Offence

(3) A person commits an offence if:

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

(2); and

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

Penalty for contravention of this subsection: Imprisonment for 6

months.

Note:

Section 14.1 of the Criminal Code (standard geographical jurisdiction)

applies to an offence against subsection (3).

44 Self-incrimination

(1) A person is not excused from answering a question or producing a

document under section 43 on the ground that the answer to the

question or the production of the document might tend to

incriminate the person or expose the person to a penalty.

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

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

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

indirect consequence of the answering of the question or

producing the document;

are not admissible in evidence against the individual in criminal

proceedings other than:

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

(e) proceedings for an offence against section 137.1 or 137.2 of

the Criminal Code that relates to this Part.

Part 4 Monitoring powers

Division 4 Obligations of authorised officers

Section 45

64 Defence Trade Controls Bill 2011 No. , 2011

Division 4--Obligations of authorised officers

45 Announcement before entry

Before entering premises under section 41, an authorised officer

must:

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

and

(b) show his or her identity card to the occupier of the premises,

or to another person who apparently represents the occupier,

if the occupier or other person is present at the premises.

46 Occupier to be informed of rights and responsibilities

If:

(a) one or more authorised officers enter premises under

section 41; and

(b) the occupier of the premises, or another person who

apparently represents the occupier, is present at the premises;

one of those officers must, as soon as practicable, inform the

occupier or other person of the rights and responsibilities of the

occupier or other person under Division 5.

Monitoring powers Part 4

Occupier's rights and responsibilities Division 5

Section 47

Defence Trade Controls Bill 2011 No. , 2011 65

Division 5--Occupier's rights and responsibilities

47 Occupier entitled to observe search

(1) If an authorised officer enters premises under section 41 and the

occupier of the premises, or another person who apparently

represents the occupier, is present at the premises, the occupier or

other person is entitled to observe the search being conducted.

(2) The right to observe the search being conducted ceases if the

occupier or other person impedes the search.

(3) This section does not prevent 2 or more areas of the premises being

searched at the same time.

48 Occupier to provide authorised officer with facilities and

assistance

(1) The occupier of premises entered under section 41, or another

person who apparently represents the occupier, must provide:

(a) an authorised officer exercising monitoring powers; and

(b) any person assisting the authorised officer;

with all reasonable facilities and assistance for the effective

exercise of their powers.

(2) A person commits an offence if:

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

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

Penalty for contravention of this subsection: 30 penalty units.

Note:

Section 14.1 of the Criminal Code (standard geographical jurisdiction)

applies to an offence against subsection (2).

Part 4 Monitoring powers

Division 6 Other matters

Section 49

66 Defence Trade Controls Bill 2011 No. , 2011

Division 6--Other matters

49 Tampering etc. with things secured

A person commits an offence if:

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

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

Penalty: Imprisonment for 6 months.

Note:

Section 14.1 of the Criminal Code (standard geographical jurisdiction)

applies to an offence against this section.

50 Persons assisting authorised officers

Authorised officers may be assisted by other persons

(1) An authorised officer may, in entering premises under section 41

and in exercising monitoring powers in relation to the premises, be

assisted by other persons if that assistance is necessary and

reasonable. A person giving such assistance is a person assisting

the authorised officer.

Powers of a person assisting the authorised officer

(2) A person assisting the authorised officer may:

(a) enter the premises; and

(b) exercise monitoring powers in relation to the premises, but

only in accordance with a direction given to the person by the

authorised officer.

(3) A power exercised by a person assisting the authorised officer as

mentioned in subsection (2) is taken for all purposes to have been

exercised by the authorised officer.

(4) If a direction is given under paragraph (2)(b) in writing, the

direction is not a legislative instrument.

51 Compensation for damage to electronic equipment

(1) This section applies if:

Monitoring powers Part 4

Other matters Division 6

Section 51

Defence Trade Controls Bill 2011 No. , 2011 67

(a) as a result of electronic equipment being operated as

mentioned in this Part:

(i) damage is caused to the equipment; or

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

(iii) programs associated with the use of the equipment, or

with the use of the data, are damaged or corrupted; and

(b) the damage or corruption occurs because:

(i) insufficient care was exercised in selecting the person

who was to operate the equipment; or

(ii) insufficient care was exercised by the person operating

the equipment.

(2) The Commonwealth must pay the owner of the equipment, or the

user of the data or programs, such reasonable compensation for the

damage or corruption as the Commonwealth and the owner or user

agree on.

(3) However, if the owner or user and the Commonwealth fail to

agree, the owner or user may institute proceedings in the Federal

Court of Australia for such reasonable amount of compensation as

the Court determines.

(4) In determining the amount of compensation payable, regard is to

be had to whether the occupier of the premises, or the occupier's

employees and agents, if they were available at the time, provided

any appropriate warning or guidance on the operation of the

equipment.

(5) In this section:

damage, in relation to data, includes damage by erasure of data or

addition of other data.

Part 5 Information-gathering powers

Section 52

68 Defence Trade Controls Bill 2011 No. , 2011

Part 5--Information-gathering powers

52 Secretary may obtain information and documents

Scope

(1) This section applies to a person if the Secretary believes on

reasonable grounds that the person has information or a document

that is relevant to the operation of this Act.

Requirement

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

person:

(a) to give to the Secretary, within the period and in the manner

specified in the notice, any such information; or

(b) to produce to the Secretary, within the period and in the

manner specified in the notice, any such documents; or

Secretary, within the period and in the manner specified in

the notice, those copies.

Note:

Section 67 deals with giving notices under this Act.

(3) The period specified in a notice given under subsection (2) must be

at least 14 days after the notice is given.

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

following provisions:

(a)

subsection

(5);

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

misleading information);

misleading documents).

Offence

(5) A person commits an offence if:

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

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

Information-gathering powers Part 5

Section 53

Defence Trade Controls Bill 2011 No. , 2011 69

Penalty: Imprisonment for 6 months.

(6) Section 15.2 of the Criminal Code (extended geographical

jurisdiction--category B) applies to an offence against

subsection (5).

53 Copying documents--compensation

A person is entitled to be paid by the Secretary, on behalf of the

Commonwealth, reasonable compensation for complying with a

requirement covered by paragraph 52(2)(c).

54 Secretary may inspect and copy original documents

The Secretary may:

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

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

document.

55 Secretary may retain copies of documents

The Secretary may inspect, and retain possession of, a copy of a

document produced under paragraph 52(2)(c).

56 Secretary may retain original documents

(1) The Secretary may take, and retain for as long as is reasonably

necessary, possession of a document produced under paragraph

52(2)(b).

(2) The person otherwise entitled to possession of the document is

entitled to be supplied, as soon as practicable, with a copy certified

by the Secretary to be a true copy.

(3) The certified copy must be received in all courts and tribunals as

evidence as if it were the original.

(4) Until a certified copy is supplied, the Secretary must, at such times

and places as the Secretary thinks appropriate, permit the person

otherwise entitled to possession of the document, or a person

Part 5 Information-gathering powers

Section 57

70 Defence Trade Controls Bill 2011 No. , 2011

authorised by that person, to inspect and make copies of the

document.

57 Self-incrimination

(1) A person is not excused from giving information or producing a

document under section 52 on the ground that the information or

the production of the document might tend to incriminate the

person or expose the person to a penalty.

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

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

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

indirect consequence of giving the information or producing

the document;

are not admissible in evidence against the individual in criminal

proceedings other than:

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

(e) proceedings for an offence against section 137.1 or 137.2 of

the Criminal Code that relates to this Part.

Record-keeping Part 6

Section 58

Defence Trade Controls Bill 2011 No. , 2011 71

Part 6--Record-keeping

58 Making and retaining records

Permit holders under Part 2

(1) A person must make a separate record of each activity that the

person does under a permit given to the person under section 11.

The person must make the record within 7 days of doing the

activity.

(2) A person must make a separate record of each arrangement that the

person makes under a permit given to the person under section 16.

The person must make the record within 7 days of making the

arrangement.

Approval holders under section 27

(3) A person who holds an approval under section 27 must make a

separate record of each activity that the person does that is

prescribed by the regulations for the purposes of this subsection.

The person must make the record within 7 days of doing the

activity.

Form of record

(4) A record under this section must contain the information

prescribed by the regulations for the purposes of this subsection.

The regulations may prescribe different information for different

kinds of records.

Retention of record

(5) The person must retain the record for 5 years after making it.

Offence

(6) A person commits an offence if:

(a) the person is required to make or retain a record in

accordance with this section; and

Part 6 Record-keeping

Section 59

72 Defence Trade Controls Bill 2011 No. , 2011

(b) the person does not make or retain the record in accordance

with this section.

Penalty: 30 penalty units.

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

Note:

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

(8) Section 15.4 of the Criminal Code (extended geographical

jurisdiction--category D) applies to an offence against

subsection (6).

59 Production of records

(1) The Secretary may, by notice given to a person who is required to

make records under section 58, require the person to produce to the

Secretary, within the period and in the manner specified in the

notice, such of those records as are specified in the notice.

Note:

Section 67 deals with giving notices under this Act.

(2) The period specified in a notice given under subsection (1) must be

at least 14 days after the notice is given.

(3) A notice under subsection (1) must set out the effect of the

following provisions:

(a)

subsection

(4);

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

misleading information);

misleading documents).

Offence

(4) A person commits an offence if:

(a) the person is given a notice under subsection (1); and

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

Penalty: Imprisonment for 6 months.

Record-keeping Part 6

Section 60

Defence Trade Controls Bill 2011 No. , 2011 73

(5) Section 15.4 of the Criminal Code (extended geographical

jurisdiction--category D) applies to an offence against

subsection (4).

60 Secretary may inspect and copy records

The Secretary may inspect a record produced under this Part and

may make and retain copies of the whole or a part of the record.

61 Secretary may retain records

(1) The Secretary may take, and retain for as long as is reasonably

necessary, possession of a record produced under this Part.

(2) The person otherwise entitled to possession of the record is entitled

to be supplied, as soon as practicable, with a copy certified by the

Secretary to be a true copy.

(3) The certified copy must be received in all courts and tribunals as

evidence as if it were the original.

(4) Until a certified copy is supplied, the Secretary must, at such times

and places as the Secretary thinks appropriate, permit the person

otherwise entitled to possession of the record, or a person

authorised by that person, to inspect and make copies of the record.

62 Self-incrimination

(1) A person is not excused from producing a record under this Part on

the ground that the production of the record might tend to

incriminate the person or expose the person to a penalty.

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

(a) the record; and

(b) producing the record; and

indirect consequence of producing the record;

are not admissible in evidence against the individual in criminal

proceedings other than:

Review of decisions Part 7

Section 63

Defence Trade Controls Bill 2011 No. , 2011 75

Part 7--Review of decisions

63 Reviewable decisions

For the purposes of this Part, each of the following decisions of the

Minister is a reviewable decision:

(a) a decision under section 11 to refuse to give a person a

permit for an activity covered by the person's application for

a permit;

(b) a decision under section 11 to revoke a permit;

condition or a decision under subsection 12(2) to vary a

permit condition;

(d) a decision under section 16 to refuse to give a person a

permit for an arrangement covered by the person's

application for a permit;

(e) a decision under section 16 to revoke a permit;

(f) a decision under subsection 16(7) or 17(1) to impose a permit

condition or a decision under subsection 17(2) to vary a

permit condition;

(g) a decision under section 20 to refuse to register a person as a

broker;

(h) a decision under section 21 to refuse to renew a person's

registration as a broker;

(i) a decision under subsection 20(7) or 22(1) to impose a

registration condition or a decision under subsection 22(2) to

vary a registration condition;

(j) a decision under section 23 to cancel a person's registration

as a broker;

(k) a decision under section 27 to refuse to approve a person as a

member of the Australian Community;

(l) a decision under paragraph 28(1)(a) or subsection 28(2) to

impose an approval condition or a decision under subsection

28(3) to vary an approval condition;

(m) a decision under section 29 to suspend an approval;

(n) a decision under section 30 to cancel an approval;

Part 7 Review of decisions

Section 64

76 Defence Trade Controls Bill 2011 No. , 2011

(o) a decision under section 35 to refuse to give a person a notice

under subsection 35(2).

64 Internal review by Minister of reviewable decisions

Scope

(1) This section applies to a reviewable decision if the decision is

made by a delegate of the Minister.

Request for review

(2) A person affected by a reviewable decision who is dissatisfied with

the decision may request the Minister to review the decision.

(3) The request must be made by written notice given to the Minister

within 30 days, or such longer period as the Minister allows (either

before or after the end of the 30 days), after the day on which the

person is informed of the decision.

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

Review of reviewable decision

(5) On receiving the person's request, the Minister must review the

reviewable decision personally.

(6) The Minister may:

(a) affirm, vary or set aside the reviewable decision; and

(b) if he or she sets aside the decision, make such other decision

as he or she thinks appropriate.

Notice of decision

(7) The Minister must give the person notice of the decision under

subsection (6), of the reasons for that decision and of the person's

right to have that decision reviewed by the Administrative Appeals

Tribunal. Failure to give notice does not affect the validity of that

decision.

Note 1:

Section 67 deals with giving notices under this Act.

Note 2:

Section 68 deals with disclosing reasons for decisions.

Review of decisions Part 7

Section 65

Defence Trade Controls Bill 2011 No. , 2011 77

Affirmation of reviewable decision by operation of law

(8) The Minister is taken, under this section, to have affirmed the

reviewable decision if the person does not receive notice of the

Minister's decision on the review of the reviewable decision within

90 days after the person requested the Minister to review the

reviewable decision.

65 Review by the Administrative Appeals Tribunal

Applications may be made to the Administrative Appeals Tribunal

for review of:

(a) a reviewable decision made by the Minister personally; or

(b) a decision made by the Minister under section 64.

Part 8 Other matters

Section 66

78 Defence Trade Controls Bill 2011 No. , 2011

Part 8--Other matters

66 Applications under Part 2 or 3

(1) An application under a provision of Part 2 or 3 must:

(a) be in the form approved by the Minister for the purposes of

that provision; and

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

and

(d) be accompanied by the fee (if any) prescribed by the

regulations.

(2) The Minister may request an applicant to give the Minister such

additional information as the Minister considers necessary to

enable the Minister to decide the application.

(3) The Minister may approve in writing a form for the purposes of a

provision of Part 2 or 3.

67 Notices, permits and approvals under this Act

(1) A notice, permit or approval required or permitted by this Act to be

given to a person must be given to the person by one of the

methods prescribed by the regulations.

(2) If a notice, permit or approval is given to a person under this Act

by one of those methods, then, for the purposes of this Act, the

person is taken to have received the notice, permit or approval at

the time prescribed by, or worked out in accordance with, the

regulations.

(3) This section has effect despite any provision in the Electronic

Transactions Act 1999.

68 Disclosure of reasons for decisions

Decisions made by the Minister personally

(1)

If:

Other matters Part 8

Section 69

Defence Trade Controls Bill 2011 No. , 2011 79

(a) a decision under this Act is made by the Minister personally;

and

(b) reasons for the decision must be given in a notice under this

Act;

the notice must not disclose any reasons whose disclosure the

Minister believes would prejudice the security, defence or

international relations of Australia.

Decisions made by delegates of the Minister

(2)

If:

(a) a decision under this Act is made by a delegate of the

Minister under a delegation under section 73; and

(b) reasons for the decision must be given in a notice under this

Act; and

reasons would prejudice the security, defence or international

relations of Australia;

then:

(d) the delegate must refer the particular case to the Minister;

and

(e) if the Minister believes that the disclosure of some or all of

the reasons would prejudice the security, defence or

international relations of Australia--the Minister must

inform the delegate of those reasons and the notice must not

disclose those reasons.

Notification

(3) If reasons are not disclosed in a notice under this Act because of

subsection (1) or (2), that fact must be stated in the notice.

69 Disclosure of information and documents

(1) The Secretary may disclose any information, or give any

document, obtained or generated for the purposes of this Act, to

any of the following for a purpose connected with the

administration of this Act (including the performance of a function,

or the exercise of a power, under this Act):

Part 8 Other matters

Section 69

80 Defence Trade Controls Bill 2011 No. , 2011

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

(b) the head (however described) of a Commonwealth entity;

(d) a foreign government entity;

(e) a person or entity specified in an instrument under

subsection (2).

(2) The Minister may, by legislative instrument, specify a person or

entity for the purposes of paragraph (1)(e).

(3) The Secretary may disclose information under subsection (1) only

if the Secretary is satisfied that the recipient of the information will

not disclose the information to anyone else without the Secretary's

consent.

(4) The Secretary may give a document under subsection (1) only if

the Secretary is satisfied that the recipient of the document will not

disclose any of the contents of the document to anyone else

without the Secretary's consent.

Relationship with other laws

(5) Subsection (1) applies despite:

(a) a law of the Commonwealth other than this section; and

(b) a law of a State or a Territory.

Definitions

(6) In this section:

Commonwealth entity means:

(a) an Agency (within the meaning of the Financial

Management and Accountability Act 1997); or

(b) a Commonwealth authority (within the meaning of the

Commonwealth Authorities and Companies Act 1997).

foreign government entity means:

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

country; or

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

Other matters Part 8

Section 70

Defence Trade Controls Bill 2011 No. , 2011 81

State or Territory entity means:

(a) a State or Territory; or

(b) an authority of a State or Territory.

70 Injunctions

Restraining injunctions

(1) If a person has engaged, is engaging or is proposing to engage, in

conduct that is or would be an offence against this Act, the Federal

Court of Australia may, on application by the Minister, grant an

injunction:

(a) restraining the person from engaging in the conduct; and

(b) if, in the Court's opinion, it is desirable to do so--requiring

the person to do a thing.

Performance injunctions

(2)

If:

(a) a person has refused or failed, or is refusing or failing, or is

proposing to refuse or fail, to do a thing; and

(b) the refusal or failure is or would be an offence against this

Act;

the Federal Court of Australia may, on application by the Minister,

grant an injunction requiring the person to do that thing.

Interim injunctions

(3) Before deciding an application for an injunction under

subsection (1) or (2), the Federal Court of Australia may grant an

interim injunction:

(a) restraining a person from engaging in conduct; or

(b) requiring a person to do a thing.

Discharging or varying injunctions

(4) The Federal Court of Australia may discharge or vary an injunction

granted under this section.

Part 8 Other matters

Section 71

82 Defence Trade Controls Bill 2011 No. , 2011

Certain limits on granting injunctions not to apply

(5) The power of the Federal Court of Australia under this section to

grant an injunction restraining a person from engaging in conduct

may be exercised:

(a) whether or not it appears to the Court that the person intends

to engage again, or to continue to engage, in conduct of that

kind; and

(b) whether or not the person has previously engaged in conduct

of that kind.

(6) The power of the Federal Court of Australia under this section to

grant an injunction requiring a person to do a thing may be

exercised:

(a) whether or not it appears to the Court that the person intends

to refuse or fail again, or to continue to refuse or fail, to do

that thing; and

(b) whether or not the person has previously refused or failed to

do that thing.

Other powers of the Federal Court unaffected

(7) The powers conferred on the Federal Court of Australia under this

section are in addition to, and not instead of, any other powers of

the Court, whether conferred by this Act or otherwise.

71 Forfeiture

(1) If a person supplies, or attempts to supply, goods in contravention

of this Act, the goods, and any thing in which they are contained,

are forfeited to the Commonwealth.

(2) If a person supplies, or attempts to supply, technology relating to

goods in contravention of this Act, the technology, and any thing

that contains the technology and is used or involved in the

contravention or attempted contravention, are forfeited to the

Commonwealth.

Other matters Part 8

Section 71

Defence Trade Controls Bill 2011 No. , 2011 83

Seizure

(3) Each of the following persons may, without warrant, seize any

goods, technology or thing that is forfeited, or that the person has

reasonable grounds to believe is forfeited, to the Commonwealth

under subsection (1) or (2) and take the goods, technology or thing

before a court of summary jurisdiction:

(a) a member of the Australian Defence Force;

(b) a member or special member of the Australian Federal Police

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

Act 1901).

Role of court of summary jurisdiction

(4) If goods, technology or a thing is taken before a court of summary

jurisdiction under subsection (3):

(a) the court must inquire into the matter; and

(b) the court must:

(i) if the court is satisfied that the goods, technology or

thing is forfeited--order that the goods, technology or

thing be condemned; or

(ii) if the court is not so satisfied--order that the goods,

technology or thing be delivered to whoever the court is

satisfied is entitled to the goods, technology or thing.

(5) Before inquiring into a matter in accordance with subsection (4), a

court of summary jurisdiction may require notice of the inquiry to

be given to anyone that the court thinks appropriate.

Pending prosecutions

(6) If a prosecution is pending for an offence against this Act

connected with the goods, technology or thing, an order for the

condemnation, or for the delivery to a person, of the goods,

technology or thing must not be made until the prosecution is

determined.

Part 8 Other matters

Section 72

84 Defence Trade Controls Bill 2011 No. , 2011

Storage of things

(7) Goods, technology or a thing seized under subsection (3) must be

stored in accordance with the procedures prescribed by the

regulations. This must be done until an order is made under

subsection (4).

Destruction etc. of things

(8) Goods, technology or a thing condemned must be destroyed or

otherwise dealt with in accordance with the procedures prescribed

by the regulations. This must be done as soon as practicable after it

is determined that the goods, technology or thing is condemned.

(9) Until the condemned goods, technology or thing is so destroyed or

otherwise dealt with, the condemned goods, technology or thing

must be stored in accordance with the procedures prescribed by the

regulations.

72 Evidential certificates by Minister

(1) The Minister may certify in writing that a notice under subsection

14(1) was in force in relation to a specified person on a specified

day.

(2) In any proceeding, a certificate under subsection (1) is prima facie

evidence of the matters stated in the certificate.

73 Delegation by Minister

(1) The Minister may, by writing, delegate all or any of the Minister's

functions or powers under this Act or the regulations to:

(a) the Secretary; or

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

Department; or

Level 2, or equivalent, position in the Department.

Note: The

expressions

APS employee, SES employee and acting SES

employee are defined in section 2B of the Acts Interpretation Act

1901.

Other matters Part 8

Section 73

Defence Trade Controls Bill 2011 No. , 2011 85

(2) However, subsection (1) does not apply to the Minister's functions

or powers under subsection 11(8), section 14, subsection 16(8),

Part 3 or section 64, 68 or 72.

Delegation of functions or powers under Part 3

(3) The Minister may, by writing, delegate all or any of the Minister's

functions or powers under section 27 or 28 or subsection 31(8) or

32(4) to:

(a) the Secretary; or

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

Department; or

Level 2, or equivalent, position in the Department.

(4) The Minister may, by writing, delegate all or any of the Minister's

functions or powers under section 29, 35 or 36 to:

(a) the Secretary; or

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

Department.

(5) However, subsection (4) does not apply to the Minister's power

under paragraph 29(1)(c).

Limitations

(6) In performing functions or exercising powers under a delegation

under this section, the delegate must comply with any directions of

the Minister.

(7) A delegate must not make a decision of a kind mentioned in

column 1 of an item in the following table if the delegate is

satisfied that the thing mentioned in column 2 of that item would

prejudice the security, defence or international relations of

Australia:

Decisions of delegates

Item

Column 1

Decision

Column 2

Thing

A decision under section 11 to refuse to The activity

Part 8 Other matters

Section 74

86 Defence Trade Controls Bill 2011 No. , 2011

Decisions of delegates

Item

Column 1

Decision

Column 2

Thing

give a person a permit for an activity

covered by the person's application for

a permit

A decision under section 16 to refuse to

give a person a permit for an

arrangement covered by the person's

application for a permit

The activity covered by the

arrangement

A decision under section 27 to refuse to

approve a person as a member of the

Australian Community

The person's holding of such

an approval

(8) If subsection (7) applies:

(a) the delegate must refer the particular case to the Minister;

and

(b) the Minister must decide the case personally.

74 Delegation by Secretary

(1) The Secretary may, by writing, delegate all or any of the

Secretary's functions or powers under this Act or the regulations

to:

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

Department; or

(b) an APS employee who holds, or is acting in, an Executive

Level 2, or equivalent, position in the Department.

Note: The

expressions

APS employee, SES employee and acting SES

employee are defined in section 2B of the Acts Interpretation Act

1901.

(2) However, subsection (1) does not apply to the Secretary's powers

under section 39.

(3) In performing functions or exercising powers under a delegation

under this section, the delegate must comply with any directions of

the Secretary.

Commonwealth of Australia Bills

DEFENCE TRADE CONTROLS BILL 2011