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Defence Trade Controls Bill 2011

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2010-2011-2012

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

Defence Trade Controls Bill 2011

 

 

(1)     Clause  2 , page 2 (table item  2 ), omit the table item, substitute:

2.  Sections 3 to 74

A day or days to be fixed by Proclamation.

A Proclamation must not specify a day earlier than the day 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, if any of the provision(s) do not commence within the period of 2 years beginning on the day the Treaty enters into force, they commence on the day after the end of that period.

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

 

3.  Sections 74A and 75

The day this Act receives the Royal Assent.

 

[commencement]

(2)     Clause 3, page 3 (lines 7 to 11), omit:

•      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.

          substitute:

•      Part 2 creates offences for persons who:

               (a)     supply DSGL technology without a permit; or

              (b)     arrange for other persons to engage in dealings relating to goods listed in the DSGL, or to DSGL technology, without a permit; or

               (c)     publish or otherwise disseminate DSGL technology to the public.

[simplified outline]

(3)     Clause 4, page 3 (before line 23), before the definition of Article 3(1) US Defence Article , insert:

arranges has a meaning affected by section 5A.

[arrangements]

(4)     Clause 4, page 5 (before line 16), before the definition of foreign person , insert:

DSGL technology means a thing that is:

                     (a)  technology, or software, as defined in the Defence and Strategic Goods List; and

                     (b)  within the scope of that list.

Note:          For paragraph (b), the Defence and Strategic Goods List contains exemptions relating to technology or software in the public domain and to basic scientific research.

[DSGL technology]

(5)     Clause 4, page 6 (lines 18 and 19), omit the definition of supply , substitute:

supply :

                     (a)  includes supply by way of sale, exchange, gift, lease, hire or hire-purchase; and

                     (b)  in relation to DSGL technology—includes provide access to DSGL technology.

[DSGL technology]

(6)     Clause 5, page 7 (lines 2 to 10), omit subclause (1), substitute:

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)  that are listed in Part 1 of the Defense Trade Cooperation Munitions List immediately before the start of that movement; and

                     (c)  that are not listed in Part 2 of the Defense Trade Cooperation Munitions List immediately before the start of that movement.

[US Defence Articles]

(7)     Clause 5, page 7 (lines 17 to 23), omit subclause (4), substitute:

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)  that are listed in Part 1 of the Defense Trade Cooperation Munitions List at the time of that delivery; and

                     (c)  that are not listed in Part 2 of the Defense Trade Cooperation Munitions List at the time of that delivery.

[US Defence Articles]

(8)     Page 8 (after line 12), after clause 5, insert:

5A   Arranging for persons to supply goods or DSGL technology

             (1)  For the purposes of this Act, a person (the broker ) arranges for another person to supply goods or DSGL technology if:

                     (a)  the broker acts as an agent of a person, or acts as an intermediary between 2 or more persons, in relation to the supply; and

                     (b)  either:

                              (i)  the broker receives, or is to receive, any commission, fee or other benefit for so acting; or

                             (ii)  the broker so acts for the purpose of advancing a political, religious or ideological cause.

             (2)  Subsection (1) does not limit the meaning of arranges for the purposes of this Act.

[arrangements]

(9)     Clauses 10 and 11, page 10 (line 4) to page 15 (line 16), omit the clauses, substitute:

10   Offence—supply of DSGL technology

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

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

                     (b)  either:

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

                             (ii)  if the supply is the provision of access to DSGL technology—at the time of the provision of access, the supplier is in Australia and the other person is outside Australia; and

                     (c)  either:

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

                             (ii)  the supply of the DSGL 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.

Exceptions

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

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

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

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

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

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

                      (f)  at the time of the supply, the original goods are not listed in Part 2 of the Defense Trade Cooperation Munitions List.

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

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

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

             (4)  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 (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).

Definition

             (6)  In this section:

place includes:

                     (a)  a vehicle, vessel or aircraft; and

                     (b)  an area of water; and

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

11   Permits for purposes of section 10

             (1)  A person may apply to the Minister for a permit under this section to supply DSGL technology to another person.

Note:          Section 66 sets out application requirements.

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

                     (a)  cover more than one supply; and

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

Example 1: For paragraph (a)—an individual or a company applies for a permit to supply particular DSGL technology to various companies or to supply various DSGL technologies to one company.

Example 2: For paragraph (b)—an individual or a company applies for a permit to supply particular DSGL technology to one company 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 for each supply covered by the application.

             (4)  The Minister may give the person a permit for a specified supply if, having regard to the criteria prescribed by the regulations for the purposes of this subsection and to any other matters that the Minister considers appropriate, the Minister is satisfied that the supply 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 supply; and

                     (b)  cover a specified supply 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 a supply covered by the application, the Minister must give the person notice of the refusal and the reasons for the refusal.

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

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

Permit conditions

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

Note:          Section 12 deals with changing permit conditions.

Revoking a permit

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

             (9)  However, the Minister may revoke the permit only if the Minister is satisfied that any supply 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.

[supplies of DSGL technology]

(10)   Clause 14, page 16 (line 24) to page 17 (line 12), omit subclause (1), substitute:

             (1)  If the Minister believes or suspects that, if a person were to supply to another person particular DSGL technology in any circumstances or in particular circumstances, the supply would prejudice the security, defence or international relations of Australia, the Minister may give the person a notice:

                     (a)  prohibiting the person from supplying that DSGL technology; or

                     (b)  prohibiting the person from supplying that DSGL technology unless conditions specified in the notice are complied with.

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

[supplies of DSGL technology]

(11)   Clause 14, page 18 (lines 9 to 25), omit subclause (10), substitute:

Offence

           (10)  A person commits an offence if:

                     (a)  the person supplies DSGL technology; and

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

                     (c)  the person knows of the contravention.

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

[supplies of DSGL technology]

(12)   Page 18 (after line 28), at the end of Division 1, add:

14A   Publishing etc. DSGL technology

             (1)  A person commits an offence if:

                     (a)  either:

                              (i)  the person publishes DSGL technology to the public, or to a section of the public, by electronic or other means; or

                             (ii)  the person otherwise disseminates DSGL technology to the public, or to a section of the public, by electronic or other means; and

                     (b)  the person does not hold an approval under this section authorising the publication or dissemination of the DSGL technology.

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

Exception

             (2)  Subsection (1) does not apply if the DSGL technology has already been lawfully made available to the public or to the section of the public.

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

Approvals

             (3)  The Minister may, in writing, approve a person publishing or otherwise disseminating specified DSGL technology to the public or to a specified section of the public. The Minister may give an approval only if the Minister is satisfied that it is in the public interest to do so.

             (4)  If the Minister gives an approval under subsection (3), the Minister must give the person the approval.

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

Geographical jurisdiction

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

Approval not a legislative instrument

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

[publishing etc. DSGL technology]

(13)   Clause 15, page 19 (line 2) to page 21 (line 2), omit the clause, substitute:

15   Offence—arranging supplies in relation to the Defence and Strategic Goods List

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

                     (a)  either:

                              (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; or

                             (ii)  the first person arranges for another person to supply DSGL technology, where the supply is, or is to be, from a place outside Australia to another place outside Australia; and

                     (b)  either:

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

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

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

Exceptions

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

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

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

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

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

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

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

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

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

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

Geographical jurisdiction

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

Definitions

             (6)  In this section:

place includes:

                     (a)  a vehicle, vessel or aircraft; and

                     (b)  an area of water; and

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

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

[arrangements]

(14)   Clause 16, page 21 (lines 4 to 17), omit subclause (1), substitute:

             (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 DSGL technology.

Note:          Section 66 sets out application requirements.

[arrangements]

(15)   Clause 16, page 21 (line 24), omit “technology relating to goods”, substitute “DSGL technology”.

[arrangements]

(16)   Clause 16, page 21 (line 33), after “if”, insert “, having regard to the criteria prescribed by the regulations for the purposes of this subsection and to any other matters that the Minister considers appropriate,”.

[arrangements]

(17)   Clause 27, page 33 (lines 8 to 10), omit note 2, substitute:

Note 2:       The offence in section 10 (about supplying DSGL technology) may not apply to the holder of an approval.

[supplies of DSGL technology]

(18)   Clause 36, page 56 (lines 16 to 21), omit subclause (3), substitute:

             (3)  Part 1 is to contain a list of 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.

[Defense Trade Cooperation Munitions List]

(19)   Clause 58, page 71 (line 3) to page 72 (line 8), omit the clause, substitute:

58   Keeping and retaining records

Permit holders under Part 2

             (1)  A person must keep records of supplies that the person makes under a permit given to the person under section 11.

             (2)  A person must keep records of arrangements that the person makes under a permit given to the person under section 16.

Approval holders under section 27

             (3)  A person who holds an approval under section 27 must keep records of activities that the person does that are prescribed by the regulations for the purposes of this subsection.

Form of records

             (4)  Records 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 records

             (5)  The person must retain the records for a period of 5 years.

Offence

             (6)  A person commits an offence if:

                     (a)  the person is subject to a requirement under this section; and

                     (b)  the person contravenes the requirement.

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).

[keeping records]

(20)   Clause 59, page 72 (line 11), omit “make”, substitute “keep”.

[keeping records]

(21)   Clause 63, page 75 (line 7), omit “an activity”, substitute “a supply”.

[supplies of DSGL technology]

(22)   Clause 71, page 82 (lines 26 and 27), omit “technology relating to goods”, substitute “DSGL technology, or technology relating to goods,”.

[supplies of DSGL technology]

(23)   Clause 73, page 85 (line 2), after “section 14,”, insert “subsection 14A(3),”.

[publishing etc. DSGL technology]

(24)   Clause 73, page 85 (table item 1, column 2), omit “activity”, substitute “supply”.

[supplies of DSGL technology]

(25)   Clause 73, page 86 (table item 1, column 1), omit “an activity”, substitute “a supply”.

[supplies of DSGL technology]

(26)   Page 86 (after line 20), after clause 74, insert:

74A   Strengthened Export Controls Steering Group

             (1)  As soon as practicable after this section commences, the Minister must appoint, in writing, the members of a Strengthened Export Controls Steering Group.

             (2)  The Group has the functions determined, in writing, by the Minister (which must include giving 6-monthly reports to the Minister and the Research Minister).

             (3)  The Group must, in performing its functions, comply with any written directions given to it by the Minister.

             (4)  The Minister must, in writing, designate one member of the Group as the Chair of the Group.

             (5)  The Minister may determine, in writing, the terms and conditions applicable to a member of the Group.

             (6)  The office of a member of the Group is not a public office within the meaning of the Remuneration Tribunal Act 1973 .

             (7)  The Group may determine the procedure to be followed in performing its functions.

             (8)  The Group must give its final report to the Minister, and the Research Minister, before the second anniversary of the day 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.

             (9)  The Group is abolished immediately after its final report is given to both the Minister and the Research Minister.

           (10)  The Minister must cause a copy of the Group’s final report to the Minister to be tabled in each House of the Parliament within 15 sitting days of that House after the day the Minister receives the final report.

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

           (12)  In this section:

Research Minister means the Minister administering the Science and Industry Research Act 1949 .

[Strengthened Export Controls Steering Group]