Australia: Ensure your R&D activities are not criminal activities

On 2 April 2016, the offence provisions of the Defence Trade Controls Act 2012 (Cth) (DTCA) came into force, making it a criminal offence for a person to supply, publish or broker certain defence-related goods and technologies without an appropriate permit or approval.

The DTCA regulates the intangible supply of controlled goods and technology, such as supplies made over the internet. Companies and research institutions may therefore be exposed to criminal liability under the DTCA even if they do not physically export goods and technology outside Australia. The DTCA regulations apply to Australian citizens, Australian bodies corporate and Australian residents anywhere in the world.

Persons in breach of the offence provisions face significant penalties of up to 10 years imprisonment or fines of up to $450,000. The provisions were enlivened after an extended 12-month implementation period following amendments to the Act in 2015 in response to stakeholder feedback.

The DTCA applies to the specific goods and technologies listed on the Defence and Strategic Goods List (DSGL). The DSGL is a lengthy and highly technical document that is designed to capture items that have been specifically designed for, or which can potentially be adapted for, military application. This can include nuclear materials, chemicals, toxins  and micro-organisms,  advanced computers and electronics, telecommunications and information security systems and other technologies with the potential for military application, regardless of whether those technologies were developed principally for commercial application.

Companies and research institutions involved in cutting-edge research and development may be affected by the DTCA and are encouraged to familiarise themselves with any categories of controlled goods and technology in the DSGL that are relevant to their industry.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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