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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

 

 

Schedule of the amendments made by the Senate

 

 

 

 

 

(1)     AG (1) [Sheet 7297]

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

2.  Sections 3 to 9

A single day 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 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.  Section 10

The day after the end of the period of 2 years beginning on the day the Treaty enters into force.

 

4.  Sections 11 and 12

A single day to be fixed by Proclamation.

A Proclamation must not specify a day earlier than the day the Treaty enters into force.

However, if 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.

 

5.  Sections 13 to 15

The day after the end of the period of 2 years beginning on the day the Treaty enters into force.

 

6.  Sections 16 and 17

At the same time as the provision(s) covered by table item 4.

 

7.  Section 18

The day after the end of the period of 2 years beginning on the day the Treaty enters into force.

 

 

8.  Sections 19 to 25

A single day to be fixed by Proclamation.

A Proclamation must not specify a day earlier than the day the Treaty enters into force.

However, if 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.

 

9.  Sections 26 to 57

A single day to be fixed by Proclamation.

A Proclamation must not specify a day earlier than the day the Treaty enters into force.

However, if 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.

 

10.  Subsections 58(1) and (2)

The day after the end of the period of 2 years beginning on the day the Treaty enters into force.

 

11.  Subsections 58(3) to (8) and sections 59 to 74

At the same time as the provision(s) covered by table item 9.

 

12.  Sections 74A and 75

The day this Act receives the Royal Assent.

 

(2)     Govt (2) [Sheet BM290]

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.

(3)     Govt (3) [Sheet BM290]

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.

(4)     Govt (4) [Sheet BM290]

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.

(5)     Govt (5) [Sheet BM290]

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.

(6)     Govt (6) [Sheet BM290]

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.

(7)     Govt (7) [Sheet BM290]

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.

(8)     Govt (8) [Sheet BM290]

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.

(9)     Opp (1) [Sheet 7296]

Page 9 (after line 20) , at the end of Part 1 , add:

9A  Exclusion for research, education and information in the public domain

                   This Act does not apply to the following:

                     (a)  information in the public domain;

                     (b)  information that has been, or is intended to be, published in any publication available to members of the public;

                     (c)  fundamental research, which is basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly in the scientific community (such research is to be distinguished from proprietary research and from industrial development, design, production and product utilisation, the results of which ordinarily are restricted for proprietary reasons or subject to other access and dissemination controls);

                     (d)  educational information or instruction provided in courses by a higher education provider;

                     (e)  information that is the minimum necessary information for patent applications.

(10)   Govt (9) [Sheet BM290]

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.

(11)   Govt (10) [Sheet BM290]

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.

(12)   Govt (11) [Sheet BM290]

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.

(13)   Govt (12) [Sheet BM290]

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.



 

(14)   Govt (13) [Sheet BM290]

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.

(15)   Govt (14) [Sheet BM290]

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.

(16)   Govt (15) [Sheet BM290]

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

(17)   Govt (16) [Sheet BM290]

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,”.

(18)   Govt (17) [Sheet BM290]

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.

(19)   Govt (18) [Sheet BM290]

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.

(20)   Govt (19) [Sheet BM290]

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).

(21)   Govt (20) [Sheet BM290]

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

(22)   Govt (21) [Sheet BM290]

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

(23)   Govt (22) [Sheet BM290]

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

(24)   Govt (23) [Sheet BM290]

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

(25)   Govt (24) [Sheet BM290]

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

(26)   Govt (25) [Sheet BM290]

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



 

(27)   AG (3) [Sheet 7297]

          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’s functions are to advise the Minister and Research Minister on:

                     (a)  the adequacy of the organisational and governmental arrangements, and the identification, assessment and management of risks, costs and administrative burden, associated with intangible transfers of DSGL technologies; and

                     (b)  the oversight, design and delivery of a pilot program to identify the adequacy of this Act, the regulations, the implementation arrangements and the resources for regulating intangible transfers of DSGL technologies; and

                     (c)  recommendations for amendments to this Act, the regulations and the implementation arrangements in view of the pilot program; and

                     (d)  whether this Act, the regulations and the implementation arrangements are not more restrictive than United States export control regulations in relation to university activities.

The Group also has any other functions determined, in writing, by the Minister.

             (3)  The Group must:

                     (a)  consider quarterly progress reports from participants in the pilot program on implementation of the strengthened export controls; and

                     (b)  through its Chair, report to the Minister and the Research Minister every 6  months; and

                     (c)  if required by the Minister and the Research Minister, provide additional reports.

             (4)  The Group must advise the Department in relation to obtaining appropriate technical and scientific expertise regarding Australian Government consideration of the control lists of international regimes and of the Defence and Strategic Goods List.

             (5)  The Group may establish subgroups to support its functions. Subgroups must report to the Group.

             (6)  The Group’s membership must include:

                     (a)  Australia’s Chief Scientist, as the Chair of the Group; and

                     (b)  no more than 4 representatives of the industry sector, one of whom is a co-Deputy Chair; and

                     (c)  2 representatives of the university sector nominated by Universities Australia, one of whom is the other co-Deputy Chair; and

                     (d)  the Chief Executive Officer of the National Health and Medical Research Council, or its nominee; and

                     (e)  the Chief Executive Officer of the Australian Research Council, or its nominee; and

                      (f)  a representative of the Department; and

                     (g)  a representative of the Department administered by the Research Minister.

             (7)  The Group must meet at least once each quarter.

             (8)  A quorum of the Group is constituted by the Chair, one representative referred to in paragraph (6)(b), one representative referred to in paragraph (6)(c) and the representatives referred to in paragraphs (6)(f) and (g).

             (9)  The Group must report every 6 months, in writing, to the Minister and the Research Minister, including any dissenting views of a member of the Group.

           (10)  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.

           (11)  The Defence Export Control Office must provide a secretariat for the Group.

           (12)  The secretariat must:

                     (a)  prepare and circulate agendas in conjunction with the Chair; and

                     (b)  work with the authors of agenda papers to ensure quality and timeliness; and

                     (c)  ensure that the agenda approved by the Chair and papers are received by members at least 1 week before each meeting; and

                     (d)  prepare and provide to the Chair, within 1 week of the meeting, the minutes of the meeting; and

                     (e)  circulate the meeting outcomes to all members following clearance by the Chair, and maintain Group records.

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

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

           (15)  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.

           (16)  The Group is abolished immediately after its final report is given to both the Minister and the Research Minister unless, before then, the Minister and the Research Minister determine, in writing, that the Group is to remain in existence until the end of a specified period.

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

           (18)  In this section:

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

 

 

 

 

 

Rosemary Laing

Clerk of the Senate

 

 

The Senate

29 October 2012