Policy

Export Controls - Policy

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1. Purpose and Objectives

This Export Controls Policy details the essential aspects of export control laws and the University’s commitment to comply with, and to assist individuals associated with the University who Work with, or have the potential to Work with, Defence and strategic goods, technology and software to comply with, those laws.

2. Definitions, Terms, Acronyms

Defence and strategic goods, technology and software – goods, technology and software listed in the Defence and Strategic Goods List (DSGL)

Defence and Strategic Goods List(DSGL) - Australia's export control list of regulated Defence and strategic goods, technology and software

Export – when Defence and strategic goods, technology and software are moved from Australia to a place outside Australia. This includes the transmission and Publication of technology listed in the DSGL

Publication – when technology listed in the DSGL is made available to the public or a section of the public by placing it on the internet or otherwise

Work – includes an intention to work or allows another person to work

3. Policy Scope/Coverage

Adherence to this Policy and associated Procedures is incumbent upon every individual associated with the University who Works with, or has the potential to Work with, Defence and strategic goods, technology and software. This includes staff, students and affiliates of, and any other individual associated with, the University.

4. Policy Statement

Export control laws regulate the Export from Australia to a place outside Australia of Defence and strategic goods, technology and software. This includes the transmission and Publication of certain controlled information.

While research or teaching activities may not be specifically related to weapons or defence, they may involve Defence and strategic goods, technology or software. Export of these items from Australia to a place outside Australia requires a permit.

Defence and strategic goods, technology and software are prohibited from being Exported or published without a permit.

The University is committed to full compliance with all export control laws that apply to its research, academic and business activities.

5. Export Control Compliance

5.1 Export control laws

In Australia, the central point of reference for regulating the Export of Defence and strategic goods, technology and software is the Defence and Strategic Goods List (DSGL). The goods, software and technologies on the DSGL are agreed in conjunction with members of various international non-proliferation and export control regimes. The DSGL is a legislative instrument made under paragraph 112(2A) (aa) of the Customs Act 1901 and is subject to regular amendment.

The Customs Act 1901 and the Customs (Prohibited Exports) Regulations 1958 prohibit the (tangible) physical Export of defence and strategic goods, technology and software without a permit from the Minister for Defence.

The Defence Trade Controls Act 2012 and Defence Trade Controls Regulation 2013 prohibit the (intangible) supply by electronic means and Publication of technology listed in the DSGL and the overseas brokering of Defence and strategic goods, technology and software without a permit or approval from the Minister of Defence.

The Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 controls any tangible or intangible goods, technologies or services that could be used in a Weapons of Mass Destruction program. This Act is ‘catch-all’ legislation and can only be used if other controls do not apply.

Section 112BA of the Customs Act 1901 allows the Minister for Defence to prohibit the Export of non-regulated tangible goods or tangible technology that may contribute to a military end-use that would prejudice Australia's security, defence or international relations. These provisions are also a ‘catch-all’ control.

5.2 Offences

The Export of Defence and strategic goods, technology and software or the supply or Publication of technology listed in the DSGL from Australia to a place outside Australia or the brokering of Defence and strategic goods, technology and software without a permit constitutes an offence and is subject to a fine not exceeding 2,500 penalty units or imprisonment for 10 years, or both.

It is also an offence to supply technology listed in the DSGL outside the terms of a permit and is subject to a fine of 60 penalty units.

Contravention of a recordkeeping requirement under the Defence Trade Controls Act 2012 incurs a penalty of 30 penalty units.

One penalty unit = $180 (subject to amendment from time to time).

5.3 Compliance responsibility

The University is committed to compliance with export control laws.

Responsibility for compliance with those laws is shared between the University and individuals associated with the University who Work with, or has the potential to Work with, Defence and strategic goods, technology and software.

The University is responsible for implementing appropriate compliance measures and providing guidance to, and raising the awareness of, individuals associated with the University who Work with, or have the potential to Work with, Defence and strategic goods, technology and software.

Individuals are also responsible for compliance with export control laws.

This responsibility stems both from the obligations imposed on individuals by export control laws and the premise that researchers have the expertise in understanding the type and potential application of products, data and technology that result from their research endeavours.

This responsibility is reflected in many of the University’s policies, in particular the Code of Conduct and the Responsible Conduct of Research Policy.

Given the significance of the potential penalties for breaches of export control laws, the University will ensure individuals associated with the University who Work with, or have the potential to Work with, Defence and strategic goods, technology and software is made aware of their compliance responsibilities and provided with the necessary tools and processes to enable them to comply with those laws.

5.4 University acknowledgement and undertakings

The University acknowledges the need for adequate resourcing for compliance with export control laws.

The University undertakes to:

  • understand and comply with all applicable export control laws and internal University controls established to ensure compliance with those laws;
  • work closely with individuals associated with the University who Work with, or have the potential to Work with, Defence and strategic goods, technology and software to develop solution based processes which further research whilst ensuring compliance with applicable export control laws;
  • develop processes to ensure export control education, training and guidance is provided to all individuals associated with the University who Work with, or have the potential to Work with, Defence and strategic goods, technology and software; and
  • maintain a close working relationship with the Defence Export Controls branch.

5.5 Export controls review committee

An export controls review committee is established as a subcommittee of the Research Committee which is a committee of the Academic Board.

5.6 Related policies and procedures

Custodians
Deputy Vice-Chancellor (Research)
Professor Robyn Ward

Procedures

Export Controls - Procedures

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1. Purpose and Objectives

These procedures enact the Export Controls Policy and detail the University’s export controls process.

2. Definitions, Terms, Acronyms

Brokering – where a person or organisation acts as an agent or intermediary in arranging the transfer of Defence and strategic goods, Technology and Software between two places located outside Australia and receives money or a non-cash benefit, or advances their political, religious or ideological cause for arranging that transfer

DEC – Defence Export Control Branch

Defence and Strategic Goods List (DSGL) - Australia's export control list of regulated Defence and strategic goods, Technology and Software

Defence and strategic goods, Technology and Software - goods, Technology and Software listed in the DSGL

Export – when Defence and strategic goods, Technology and Software are moved from Australia to a place outside Australia. This includes the Supply and Publication of DSGL Technology

Publication – when Technology listed in the DSGL is made available to the public or a section of the public by placing it on the internet or otherwise

Software - a collection of one or more programs or ‘microprograms’ fixed in any tangible medium of expression

Supply – when a person in Australia provides DSGL Technology to another person located outside Australia by electronic means

Technical Assistance - instruction, skills, training, working knowledge and consulting services and may involve the transfer of Technical Data

Technical Data - blueprints, plans, diagrams, models, formulae, tables, engineering designs and specifications, manuals and instructions written or recorded on other media or devices such as disk, tape, read-only memories

Technology - specific information necessary for the development, production or use of a product in the form of Technical Data or Technical Assistance

Work – includes an intention to work or allows another person to work

3. Procedures Scope

These procedures apply to every individual associated with the University who Works with, or has the potential to Work with, Defence and strategic goods, Technology and Software. This includes staff, students and affiliates of, and any other individual associated with, the University.

4. Procedures Statement

Export control laws regulate the export from Australia to a place outside Australia of Defence and strategic goods, Technology and Software. This includes the Supply and Publication of certain controlled information.

While research or teaching activities may not be specifically related to weapons or defence, they may involve defence and strategic goods, Technology or Software. Export of these items from Australia to a place outside Australia requires a permit.

Defence and strategic goods, Technology and Software are prohibited from being exported without a permit.

5. When does an export occur?

An export occurs when Defence and strategic goods, Technology and Software are moved from Australia to a place outside Australia.

Exports can be ‘tangible’ and ‘intangible’.

A ‘tangible’ Export is a physical export of Defence and strategic goods, Technology and Software - for example items exported by ship, aircraft, post or courier or carried in checked-in or hand-held luggage. A ‘tangible’ Export can be in the form of Technology stored on a physical medium such as a CD, DVD, USB or computer hard drive or in the form of blueprints, diagrams or notes.

An ‘intangible’ Export occurs when a person in Australia Supplies or provides a person located outside Australia with access to DSGL Technology – for example by email, fax, telephone, video conferencing, or providing access to electronic files.

Tangible’ exports of Defence and strategic goods, Technology and Software and ‘intangible’ exports of DSGL Technology require an export permit. Failure to obtain a permit may incur significant penalties.

6. When do export controls apply?

When assessing whether export controls apply, the following questions should be asked.

Does the research or teaching activity involve an item or Technology subject to export controls under the DSGL?

The DSGL is divided into two parts.

Part 1 is the Munitions List which lists certain goods and technologies designed or adapted for military use or goods that are inherently lethal. It has two categories: Military Goods and Non Military Lethal Goods.

Part 2 is the Dual-Use List which lists equipment and technologies developed to meet commercial needs but which may be used either as military components or for the development or production of military systems or weapons of mass destruction. It has 10 categories.

Category 0: Nuclear Materials, Facilities and Equipment

Category 1: Materials, Chemicals, Microorganisms and Toxins

Category 2: Materials Processing

Category 3: Electronics

Category 4: Computers

Category 5: Telecommunications and Information Security

Category 6: Sensors and Lasers

Category 7: Navigation and Avionics

Category 8: Marine

Category 9: Aerospace and Propulsion

A DSGL Search Tool to assist searching the DSGL is available on the DEC website.

If the research or teaching activity does involve an item or Technology subject to export controls under the DSGL, does the activity fall within one of the DSGL exemptions?

If the research or teaching activity does not fall within one of the DSGL exemptions, will the activity involve export by Export, Supply or Publication from Australia to a place outside Australia or involve Brokering?

If the answer is yes, then export controls probably apply.

An Activity Questionnaire which will assist you in assessing whether your activity requires an export permit is available on the DEC website. You will be able to save and print a copy of that assessment.

7. Permits

7.1 Permit application process

All University export control permit applications are made in the name of the University. If an export permit is required, individuals should contact the University export control officer who will apply for the export permit.

There are different types of export permits and approvals available including single use permits, permits issued for a period of up to five years, multi-party (project) permits issued for the life of a project and multiple-use permits for the Export or Supply of certain Part 2 DSGL Defence and strategic goods, Technology and Software to certain approved destinations (AUSGELs).

7.1.1 Physical (tangible) export permits

A permit is required to Export Defence and strategic goods, Technology and Software in physical form.

7.1.2 Supply (intangible) permits

A permit will be required when a person in Australia Supplies DSGL Technology in an electronic or other intangible form to a person located outside Australia. This includes providing access to DSGL Technology (for example by providing passwords to access electronic files stored on a database located in Australia).

Exception

A permit is not required for pre-Publication Supply of Part 2 DSGL Technology.

A permit is not required for oral supply of DSGL Technology UNLESS the oral Supply is for the purpose of providing a person with access to DSGL Technology OR the oral Supply is for the purpose of providing the DSGL Technology for use in a Weapons of Mass Destruction program or for a military end-use.

7.1.3 Publication approvals

An approval will be required to place Part 1 DSGL Technology in the public domain by publishing it on the internet or otherwise. This requirement applies to anyone located in Australia or an Australian citizen or resident located outside Australia.

Exception

A Publication approval is not required for Publication of Part 2 DSGL Technology

7.1.4 Brokering permits

A Brokering permit will be required for Brokering the transfer of Part 1 Defence and strategic goods, Technology and Software. A person must be registered as a broker before a brokering permit can be applied for.

Exceptions

A permit is not required for Brokering the transfer of Defence and strategic goods, Technology and Software from a listed country.

A permit is not required for Brokering Part 2 Defence and strategic goods, Technology and Software unless the Part 2 Defence and strategic goods, Technology and Software are being brokered for a military end-use or a Weapons of Mass Destruction program.

7.1.5 Multi-party (project) permits

An application can be made by a single applicant (for example the University) working on a joint project or collaborative activity, on behalf of all the other parties who will require an export permit.

If DEC assesses that the applicant and co-applicants may have a permit, it will contact each co-applicant and confirm their need for a permit. Once approved, the applicant and the co-applicants will each be issued a permit with identical descriptions of the approved items, consignees and end-users. However, each permit will only list one permit holder and will be uniquely numbered.

DEC can amend issued permits and additional collaborators can be added to all permits by application by the original applicant (depending on DEC’s assessment).

7.1.6 Australian General Export Licences (AUSGELs)

AUSGELs are permits for the Export or Supply all Part 2 Defence and strategic goods, Technology and Software except for those listed on the licences.

The University has acquired two AUSGELs which are valid for a period of 5 years, expiring on 6 November 2020.

AUSGEL1 is for multiple Exports of certain approved Part 2 DSGL Defence and strategic goods, Technology and Software to approved destinations.

AUSGEL2 is for multiple Supplies of certain approved Part 2 DSGL Technology to approved destinations.

The approved destinations are: Austria, Belgium, Bulgaria, Canada, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Japan, Luxembourg, Netherlands, New Zealand, Norway, Poland, Portugal, Spain, Sweden, Switzerland, United Kingdom and the United States.

8. The University Export Controls Process

The University is committed to full compliance with all export control laws that apply to its research, academic and business activities.

8.1 Responsibility for export controls

Responsibility for compliance with export control laws is shared between the University and individuals associated with the University who Work with, or have the potential to Work with, Defence and strategic goods, Technology and Software.

The University is responsible for implementing appropriate compliance measures and providing guidance to, and raising the awareness of, individuals associated with the University who Work with, or have the potential to Work with, Defence and strategic goods, Technology and Software.

Individuals are also responsible for compliance with export control laws. This responsibility stems both from the obligations imposed on individuals by export controls legislation and the premise that researchers have the expertise in understanding the types and potential applications of products, data and technology that result from their research endeavours.

The University believes the best method of ensuring understanding and compliance with export control laws is one based on the University working closely with individuals associated with the University who Work with, or have the potential to Work with, Defence and strategic goods, Technology and Software to understand their issues and develop solution based processes which further research whilst ensuring compliance with export control laws.

To assist in this process, a dedicated export control officer role and an export controls review committee which will provide additional oversight of export controls issues have been created. It is the University’s expectation that day to day oversight of export controls compliance will sit with University faculties and institutes.

8.1.1 Export controls officer

The University export controls officer is the primary point of contact for internal and external export controls enquiries and permit applications. The officer provides advice and assistance to the University, individuals associated with the University who Work with Defence and strategic goods, Technology and Software and to the export controls review committee.

8.1.2 Export controls review committee

The export controls review committee will provide advice on any export control related matters and promote and foster export controls compliance throughout the University. Each appointed committee member will have expertise in at least one of the categories of Defence and strategic goods, Technology and Software listed in Parts 1 and 2 of the DSGL.

8.1.3 Export controls compliance oversight

Heads of School, Centre Directors and Institute Directors (or equivalent), or their authorised representatives within the management structure, are responsible for oversight of export controls issues within their area. Responsibility includes ensuring new appointees who Work with Defence and strategic goods, Technology and Software undergo export controls training with the support of the export controls officer.

9. Compliance Tools

To assist individuals associated with the University who Work with, or have the potential to Work with, Defence and strategic goods, Technology and Software, in addition to PPL 4.20.09a Export Controls Policy and this Procedure, the University has developed export control webpages which provide an introduction to export controls, detail the decision making process to be undertaken when determining whether a research or teaching activity is subject to export controls and describe types of permits and the University permit application process.

The webpages include links to definitions and guidance materials and tools developed by DEC including the Activity Questionnaire, DSGL Search Tool, FAQs, University/Research Sector Scenarios and Sector Specific Guides.

10. University Export Controls Training

Individuals associated with the University who Work with, or have the potential to Work with, Defence and strategic goods, Technology and Software will be required to undertake training which comprises:

  • an overview of export controls and how they impact the University;
  • the operation of the University export controls webpages;
  • the role of the export controls review committee; and
  • the relevant University contact personnel.

In addition, the University will ensure individuals associated with the University who Work with, or have the potential to Work with, Defence and strategic goods, Technology and Software are notified of changes in export control requirements and provided with accurate, reliable interpretation of those requirements.

11. Recordkeeping

11.1 Physical exports

Records of all relevant commercial documents relating to the physical Export of Defence and strategic goods, Technology and Software must be kept for five years from the date of export by the individual exporting Defence and strategic goods, Technology and Software. Alternatively the exporting individual can send a copy of those documents to the University export control officer.

A permit may also contain conditions of use which must also be complied with.

Reporting conditions are often applied to export permits covering multiple shipments requiring the submission of regular reports detailing the exports, including nil returns, made under the permit.

Reports must be lodged with DEC within 10 working days of the end of each reporting period using an approved reporting form. The reporting periods are prescribed within the reporting condition. The University export controls officer will liaise with the relevant exporting individual in preparing and lodging reports with DEC.

11.2 Intangible exports (supply)

Records of intangible supplies of DSGL Technology must be kept for a period of five years by the individual. Alternatively the exporting individual can send a copy of those records to the University export control officer. Records of intangible supplies of DSGL Technology must contain the following information:

  • a description of the DSGL Technology Supplied under the permit;
  • the permit number under which the DSGL Technology was Supplied;
  • the name of any person to whom DSGL Technology was Supplied under the permit; and
  • for each supply of DSGL technology under the permit: the date of the Supply; or if the permit covers the Supply of DSGL Technology for a period of time, the period, or periods, of time during which the DSGL Technology was Supplied.

If DSGL Technology is supplied via email, the record-keeping obligations will be fulfilled if a reference to the permit number is included in the email (e.g. in the header, body or footer or embedded in a signature block created specifically for a project), and a copy of the email kept.

Note: Record-keeping requirements relate only to the actual Supply of DSGL Technology, not associated communication which may discuss the Supply but do not actually constitute the Supply itself.

12. Audit Process

The University’s export controlled activities will be audited annually. The purpose of the audit process is to verify that export control procedures and record keeping requirements are correctly implemented by individuals associated with the University who Work with, or have the potential to Work with, Defence and strategic goods, Technology and Software. Training will also be audited annually.

Breaches of export control laws identified in the process of audit will be investigated and any system issues reviewed. Immediate corrective action will be taken including timely notification to DEC where necessary.

Annual audit results will be reported to the University’s Vice-Chancellor and Senate.

13. Offences

The Export of Defence and strategic goods, Technology and Software or the Supply or Publication of DSGL Technology from Australia to a place outside Australia or the Brokering of Defence and strategic goods, Technology and Software without a permit constitutes an offence and is subject to a fine not exceeding 2,500 penalty units or imprisonment for 10 years, or both.

It is also an offence to Supply DSGL Technology outside the terms of a permit or approval and is subject to a fine of 60 penalty units.

Contravention of a recordkeeping requirement under the Defence Trade Controls Act 2012 incurs a penalty of 30 penalty units.

One penalty unit = $180 (subject to amendment from time to time).

Custodians
Deputy Vice-Chancellor (Research)
Professor Robyn Ward
Custodians
Deputy Vice-Chancellor (Research)
Professor Robyn Ward