Under Australian export control laws it is a serious criminal offence to export, supply, publish or broker controlled goods or technology without the necessary authorisations.
The legislation in this area is complex and even the best-intentioned may unknowingly commit breaches. This article explores the various export control legislation, and the penalties which apply for not meeting requirements, as outlined by Australian Government Defence.
Breaches of the Customs Act
Under the Customs Act 1901, it is an offence to unlawfully export:
- Goods listed in the Defence and Strategic Goods List (DSGL).
- Uncontrolled goods which are subject to a prohibition notice.
The DSGL is split into two parts. Part 1 lists munitions (or military) items while Part 2 lists dual-use items that may be used for commercial purposes but may also be used in military systems or for weapon of mass destruction purposes. Part 2 of the DSGL is split into categories including Electronics, Telecommunications and Information Security, and Aerospace and Propulsion, amongst others.
Maximum penalties under the Customs Act are imprisonment of up to 10 years or a fine not exceeding 2,500 penalty units (or both) for exporting DSGL goods without a permit, and for exporting goods in contravention of a military end-use prohibition notice.
Exporting DSGL goods in breach of a permit condition may result in a fine not exceeding 100 penalty units. As of 1 July 2020, the value of one penalty unit is $210.
Additionally, goods that are exported unlawfully may be seized and forfeited to the Commonwealth. This also applies to breaches of the other Acts outlined below.
Breaches of the Defence Trade Controls Act
Under the Defence Trade Controls Act 2012 it is an offence to unlawfully supply, publish, and broker DSGL items in contravention of a permit condition or a prohibition notice, or without the relevant approval.
Those found to have breached a condition of a permit may face a fine not exceeding 60 penalty units. Those prosecuted for any other offence (e.g. supplying DSGL technology without a permit or in contravention of a prohibition notice) face imprisonment for up to 10 years or a fine not exceeding 2,500 penalty units (or both).
Breaches of the Weapons of Mass Destruction Act
Under the Weapons of Mass Destruction (Prevention of Proliferation) Act 1995, it is an offence to supply, export or provide goods which the person believes or suspects, on reasonable grounds, will or may be used in a Weapons of Mass Destruction program, without a permit or in contravention of a permit condition.
It is also an offence to supply or export goods or provide services in contravention of a prohibition notice or a condition specified in a prohibition notice.
Those prosecuted face imprisonment for up to 8 years or a court-imposed fine.
Breaches relating to sanctions
It is important to note that an export may be subject to United Nations Security Council or Australian Autonomous Sanctions. Sanctions measures can include restrictions on trade and on engaging in commercial activities with specific countries.
Application of the Criminal Code Act
Under section 136.1 of the Criminal Code Act 1995, any person who makes a false or misleading statement in an application for a permit or certificate faces a maximum penalty of one year imprisonment.
Key takeaways
Before you export, supply, publish or broker any military or dual-use goods or technology, you should be aware of the permission requirements under the relevant legislation, and the penalties which apply for not meeting those requirements.
