Australia’s new strengthened export controls will require that students and staff researching and publishing findings related to technology listed on the Defence and Strategic Goods List (DSGL) obtain permits from the Defence Export Control Office (DECO) in some instances.
Your university has likely already started down the path of examining your exposure to Australia’s strengthened export controls and determining which schools will require additional resources to ensure effective compliance.
The most fundamental elements to understand when examining exposure are the Government’s definitions of the terms “supply” and “publication” under the Defence Trade Controls Act.
To understand the impact of this new legislation in Australia, one must first become familiar with the Government’s terminology, specifically what is meant by ‘publication’ and ‘supply’ in the Defence Trade Controls Act 2012 (the Act).
The definition of “publication” that the Australian Government uses in the Act is not the layman’s definition. In the course of university research, you may be disseminating information in a way that is considered to be an intangible “supply”, instead of a “publication”.
A “publication” is considered to be placing controlled technology or information in the “public domain” by publishing it on the internet or otherwise. Publication controls apply to anyone located in Australia, or an Australian citizen or resident located outside Australia.
Where a person in Australia provides DSGL controlled technology, or access to DSGL controlled technology, to a person outside of Australia in a non-physical form such as an email, fax, phone conversation or password to a database is making an intangible “supply”. The stringency of the need to obtain a permit before the making of supplies to overseas parties depend on whether the technology is listed in Part 1 or Part 2 of the DSGL. DSGL Part 2 supplies are less stringently controlled and it is important to have a good understanding of the Act to understand where the lines are drawn. DECO has said that they will be issuing guidance later this year, possibly in September or October.
To begin, all universities and research institutions will first need to survey staff and researchers to determine exposure to the new legislation and identify instances where permits will be required from DECO.
Once compliance obligations are understood, universities will need to create a compliance program, ideally at a School level, to help ensure and maintain compliance with the legislation. To assist in your efforts, below is a table of some “do’s” and “don’ts” that you may wish to keep in mind as you develop a compliance programs for your university or for each affected school.
Do
- Create a university or school policy for export compliance.
- Create resources for researchers and staff so that they have a source they can contact for questions about the legislation, university policy, protocols for permit applications, etc.
- Assign ONE person the responsibility for overseeing export compliance at each school.
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Create a recordkeeping program to be able to demonstrate compliance to the authorities and track permit requirements.
- Create an internet/ intranet page where researches and staff can access information in layman’s terms about export compliance, self-assessment, permit applications, contacts, legislation, etc.
Don’t
- Expect researchers and staff to read and understand the legislation and DSGL.
- Leave it to researchers and staff to interpret the legislative requirements. Layman’s definitions of key terms such as “publication” and “supply” differ from the Government’s definition.
- Have multiple staff responsible for the compliance function. There should be one key staff member trained on the requirements that is able to advice researchers and staff on their projects.
- Distribute information about legislative requirements in hard-copy. Hard copy is difficult to update and easy to misplace.
- Forget to provide examples of “supply” and “publication” when outlining requirements for researchers and staff.
We hope you find these tips helpful, but should you have questions, please do not hesitate to contact us for a consultation.
At International Trade Advisors, we have been working to help universities implement effective compliance programs that minimise the burden on researchers and staff. We can assist your university with designing a compliance program to help achieve compliance with the new legislation before offence provisions take effect. We can also assist by reviewing a compliance program already in place or ready to launch and provide you with feedback on potential improvements or areas that may have been inadvertently overlooked.
We can help with:
Drafting/reviewing a University or School export compliance policy and program
Creating/reviewing an internet/intranet page about export compliance
Creating/reviewing the methodology for determining exposure to export controls at each school
Creating a recordkeeping program
Creating an audit/monitoring program
And more.
For further information about our services for universities, please contact Eva Galfi on 0421 506 095.
