10AOffence—supply of DSGL technology in Australia to foreign person

10A Offence—supply of DSGL technology in Australia to foreign person

(1) A person (the supplier) commits an offence if: (a) the supplier supplies DSGL technology to another person; and (b) the other person is a foreign person; and (c) the supply is a constitutional supply; and (d) the supply is a relevant supply; and (e) any of the following applies: (i) the place from which the supply is made and the place to which the supply is made are both in Australia; (ii) the supply occurs wholly at a place in Australia; (iii) if the supply is the provision of access to DSGL technology—at the time of the provision of access, both the supplier and the other person are in Australia; and (f) either: (i) the supplier does not hold a permit under section 11 authorising the supply; or (ii) the supply contravenes a condition of a permit that the supplier holds under section 11; and (g) 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.

Absolute liability (2) Absolute liability applies to paragraph (1)(c). Application to supplies to employees etc. (3) For the purposes of subsection (1), if the supplier is not an individual and supplies DSGL technology to an officer or employee of the supplier, the supply is taken to be a supply by the supplier to another person (that other person being the officer or employee). Exceptions (4) 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 (4): see subsection 13.3(3) of the Criminal Code.

(6) Subsection (1) does not apply if: (a) the DSGL technology is supplied by or to a person who is a member of the Australian Defence Force, an APS employee, an employee of ASIO, an employee of ASIS, an employee of ASD, a member or special member of the Australian Federal Police or a member of the police force of a State or Territory; and (b) the supply occurs in the course of the person’s duties as such a person; and (c) the DSGL technology is not: (i) an Australian Military Sales Program item; or (ii) specified in a determination in force under subsection 5C(3); or (iii) prescribed by the regulations for the purposes of this subparagraph.