Defence Trade Controls Act

SeminarMarch 2016

Douglas Robertson and Maria Davern -Research Services

Two part presentation

• Outline of DTCA – a brief introduction• Some scenarios and then more depth for those

potentially at risk and how to undertake a self-assessment

Export and Defence Controls

Three relevant pieces of legislation• The DTCA deals with technology and

intangibles• Defence Export Controls deals with

hardware• Sanctions – deals with people and

organisations

Key acronyms

DEC Defence Export Controls Office

DTCA Defence Trade Controls Act

DSGL – Defence Strategic Goods List – 364 PAGES OF HIGHLY TECHNICAL DESCRIPTIONS

Defence Trade Controls Act 2012

The Act regulates military and dual use* technology from 15 May 2015:

1. Intangible Supply,

2. Publishing and

3. Brokering

The Act is about transmission across national borders of intangible information.

5

Why does compliance matter?

It is a criminal offence with personal liability.

Penalties: $425,000 fine and/or 10 years imprisonment.

Intangible supplyINCLUDE• Emails• Software• Closed websites• Dropbox and similar sites – not made public• Images, plans, designs• Conferences closed to the public

• WHERE THEY CONVEY TECHNICAL INFORMATION WHICH IS COVERED BY THE DSGL

EXCLUDE• Phone calls• Information openly available to the public• Emails using the corporate email system to staff or students• Information in the publication process including draughts to co-authors,

peer review, editing• Open to public conferences

BASIC SCIENTIFIC RESEARCH

Basic scientific research” means experimental or theoretical work undertaken principally to acquire new knowledge of the fundamental principles of phenomena or observable facts, not primarily directed towards a specific practical aim or objective.

Technology Readiness Levels

© FIDAMC

VERY LOW RISK

HIGH RISK

Dual Use Definition

“Dual-use goods comprise 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.”

The key question is how immediately useful does a piece of information have to be to be considered dual use. The number of researchers affected is dependent on this.

ANU Legal Representation in the event that an ANU researcher is prosecuted under the ActThe University will stand behind its staff and meet the costs of actions that might be taken against them personally as though the action had been taken against the University, provided that the staff member concerned was acting in good faith.

In addition, under the Criminal Code Act 1995 there is a defence available for any person who, mistakenly supplies, publishes or brokers DSGL controlled technologies contrary to the DTCA, after diligently following any institutional compliance processes (i.e. making relevant inquiries).

Key part of communication

• The material is only controlled if it provides the necessary information to allow another person to develop, produce or in some cases, use technology listed in the DSGL.

• Saying you intend to do something i.e. a research goal does not breach the act only communicating once you have done it

Should I stay for the second partNOif you only work in basic science with no possible applications for your work in a longer than ten year time frame then you should not need to worry.

You never communicate overseas except for drafts of publications or with already published information.

You are absolutely sure your work has no possible dual use application.

YES• If you are in any doubt• If you have questions• If you work in an area of definite

military interest• You are concerned your science

may have a dual use perspective• Your work involves developing

instrumentation, photonics, electro-optics, sensing, materials, aerospace devices, or navigation

• You have technology which is capable of commercial development

• You want to walk through some scenarios to get a better understanding

Contact for further information or advice on DTCA

Maria DavernEmail: dtca@anu.edu.auPhone: 6125 6736Location: Research Services, Chancelry 10B

Part 2

• Guidance to researchers• Some scenarios• Self-assessment process using

the On-line tool

What a researcher needs to do – our guidanceAs a minimum.

• Assess their research and activities under the DTCA by using the On-line tool which DEC themselves provide – searching is by key words (see later). As ever picking effective key words is essential for a useful use of the tool. The tool is designed to be searched on technical criteria.

If flagged as controlled or if one is still concerned after using the tool:• Prepare an assessment for DEC to assess

If controlled• Apply for a permit

The Defence Strategic Goods List has two major sub-divisions

• Military• Dual Use

Areas of TechnologyThe key document is the Defence Goods Strategic List (DSGL) – a list of certain goods and technology that Australia controls for export purposes• Covers ten areas of technology

0 - Nuclear Materials1 - Materials, Chemicals, Micro-organisms and toxins2 - Materials Processing3 - Electronics4 - Computers5 - Telecommunications and information security6 - Sensors and lasers7 - Navigation and avionics8 - Marine9 – Aerospace

The list extends to 361 pages of highly technical descriptions!

But there is an on-line search toolhttps://dsgl.defence.gov.au/Pages/Home.aspx

Description Permit Required

Rese

arch

& D

evel

opm

ent

TRL1 ‐ Scientific research begins translation to applied R&D ‐ Lowest level of technology readiness. Scientific research begins to be translated into applied research and development. Examples might include paper studies of a technology’s basic properties.

No

TRL2 ‐ Invention begins ‐ Once basic principles are observed, practical applications can be invented. Applications are speculative and there may be no proof or detailed analysis to support the assumptions. Examples are limited to analytic studies.

No

TRL3 ‐ Active R&D is initiated ‐ Active research and development is initiated. This includes analytical studies and laboratory studies to validate analytical predictions of separate elements of the technology. Examples include components that are representative, not yet integrated or not yet validated.

Maybe

Test

ing

and

Dem

onst

ratio

n

TRL4 ‐ Basic technological components are integrated ‐ Basic technological components are integrated to establish that the pieces will work together.

Maybe

TRL5 ‐ Fidelity of breadboard technology improves significantly ‐ The basic technological components are integrated with reasonably realistic supporting elements so it can be tested in a simulated environment. Examples include “high fidelity” laboratory integration of components.

Yes (if no exemptions apply)

TRL6 ‐ Model/prototype is tested in relevant environment ‐ Representative model or prototype system, which is well beyond that of TRL 5, is tested in a relevant environment. Represents a major step up in a technology’s demonstrated readiness. Examples include testing a prototype in a high‐fidelity laboratory environment or in simulated operational environment.

Yes (if no exemptions apply)

TRL7 ‐ Prototype near or at planned operational system ‐ Represents a major step up from TRL 6, requiring demonstration of an actual system prototype in an operational environment.

Yes (if no exemptions apply)

Prod

uctio

n an

d De

ploy

men

t

RL8 ‐ Technology is proven to work ‐ Actual technology completed and qualified through test and demonstration.

Yes (if no exemptions apply)

TRL9 ‐ Actual application of technology is in its final form ‐ Technology proven through successful operations.

Source: Defence Export Controls

Yes (if no exemptions apply)

Do I need a permit to send a draft copy of the paper to my co-author located overseas? Does my overseas co-author need approval to send the paper to the publisher?

Scenario 1

If your paper includes only Part 2 of DSGL technology:Sending a draft copy of the paper is a pre‐publication activity and is exempt from controls.If your co‐author is located overseas, they do not need a permit to send the paper to the publisher as this is a supply activity occurring outside Australia. (Supply activities occurring wholly outside Australia are not caught by the supply offence).If your paper includes Part 1 DSGL technology:You will need a permit to supply it to your co‐author.If your co‐author is located overseas, they do not need a permit to send the paper to the publisher as this is a supply activity occurring outside Australia.

As a researcher, do I need approval to publish their thesis electronically via an institutional repository e.g. espace, which can be accessed by the general public?

Scenario 2

Is your technology listed on Part 1 or Part 2 of the DSGL?If the thesis includes Part 2 DSGL technology you will not need approval to publish.If the thesis includes Part 1 DSGL technology that was not already in the public domain, then placing it on the repository will require publication approval.

My Ph.D. thesis is on technology listed in the DSGL Part 2 and has never been published. However, the thesis is available at the institutional repository (e.g. espace) which is accessible by the general public. Do I need approval to send another copy to a colleague overseas?

Scenario 3

No. This technology has already been published by making it available to the public via the institutional repository. Once published it is no longer controlled and no supply permits are required.

Do I need approval to share the metadata (e.g. bibliographic information such as author, title, publication date etc) of published or unpublished works on the Internet or in an institutional repository?

Scenario 4

Simply mentioning the DSGL item does not make it a controlled activity.The material is only controlled if it provides the necessary information to allow another person to develop, produce or in some cases, use the technology.If the published material does not meet the control threshold then no approvals are required.

Thinking about risk

• Does your research have potential application in 10 years?

• Does you research have potential applications to do harm?

• Does your research have the potential to detect activities, substances etc that could do harm?

Use the DSGL on-line tool

Thinking about risk 2• Does your activity involve (other than use of

commercially available items) - sensing or navigation?- Lasers?- developing technology for accurate measurement?- propulsion?- material science?- cybersecurity?

Use the DSGL on-line tool

Thinking about risk 3

• Does your activity involve work on:- chemicals- materials- pathogens

Plug the chemical/pathogen name into the DSGL on line tool as a key word.

Can I use PowerPoint slides containing DSGL technology at my presentation? Is this still considered an oral presentation?

Scenario 5

As the PowerPoint slides are written, they are subject to export controls when sent from Australia to overseas.You would need a supply permit to email your PowerPoint slide from Australia overseas if the contain controlled technology.If you take the slides with you from Australia to overseas in hardcopy, stored on your laptop or on a media storage device, you will need an export permit

I have been invited to present at a prestigious international scientific conference (outside Australia) on technology listed in the DSGL. Scientists in the field are given an opportunity to submit applications to attend. Invitations are given to those judged to be the leading researchers in the field, and attendance is by invitation only. Some of the attendees will be non-Australian persons. Do I need a permit to present?

Scenario 6

No. A supply permit is not required to present at the conference.However you might need to consider:Whether you will require a permit to supply (e.g. email) your presentation from Australia to the conference organisers located overseas.If you are taking it outside of Australia in a tangible form, for example printed hard copies or stored on a laptop, you will need an export permit.If the paper is only going to be distributed to the selected conference attendees, this is not a publication and no pre‐publication supply exceptions for DSGL Part 2 technology will be available.

Our company has entered into a cooperative research arrangement with a research group at a university. One of the researchers in that group is of a different nationality. I would like to share some of our information with the university research group and their foreign scientist. Do I need a permit to do so?

Scenario 7

No. If you are located in Australia, you do not require a permit as export controls only apply to the supply or export of DSGL technology from Australia to outside Australia.If the researcher is located outside Australia you will need a supply permit to share (i.e. via email or providing access) DSGL technology with the researcher. Access to DSGL technology could involve, for example, providing a password to access the technology. However, phone calls about DSGL technology from inside Australia to outside Australia are not controlled, unless they are providing access to DSGL technology or the supply is for use in a Weapons of Mass Destruction Program or for military‐end‐use.

My visiting scientist has returned to their home institution and we are looking to write up the results of our collaboration.� Do I need a permit to exchange emails and data from our joint collaboration?

Scenario 8

If your technology listed on Part 1 or Part 2 of the DSGL you will require a permit to supply the technology to the researcher located overseas.

I would like to compare as yet unpublished research results with a scientific colleague from another country and discuss the results with them when they visit Australia. Do I need approval to do so?

Scenario 9

Is your technology listed in Part 1 or Part 2 of the DSGL?Sharing research results is considered a supply, and will need a supply permit. If you are only going to share results orally (e.g. telephone conversation), you will not need a supply permit.When they visit Australia, you will not need a permit to share DSGL technology as the supply is occurring entirely inside Australia.

I am part of a research project that will be conducted by staff on the Australian campus and an offshore campus of the university. We will be using the same database to store and share our data. Our research is DSGL technology. What approvals do we need?

Scenario 10

If your institution views both campuses and associated researchers as part of the same body corporate, you will not require a permit as a "person" cannot supply to themselves.If your institution does not view both campuses and associated researchers as part of the same body corporate, you will need a supply permit as you are providing people outside of Australia with access to DSGL technology. You can apply for a permit that will cover all exports or supplies of DSGL technology for the duration of the project.

If I am travelling overseas what arrangements do I need to make regarding the DSGL Part 1 or Part 2 technology that is stored on my laptop and storage device?

Scenario 11

This is a tangible export of DSGL technology. You will need an export permit to take the laptop and media storage device overseas with you, even if you have no intention of providing the DSGL technology to anyone while overseas.If you decide not to take your storage device and access DSGL technology from the cloud service your university provides, you will not need a permit as you will not be providing access to the DSGL technology to another person outside Australia. Supply must occur from one person to another, and you cannot supply to yourself.

Using the on-line DSGL tool

https://dsgl.defence.gov.au/Pages/Home.aspx

Questions