10C Offence—provision of DSGL services outside Australia
(1) A person (the provider) commits an offence if:
(a) the provider provides DSGL services to another person; and
(b) the other person is a foreign person; and
(c) the DSGL services are constitutional DSGL services; and
(d) the DSGL services are relevant DSGL services; and
(e) the provider is an Australian person; and
(ea) the provider provides the DSGL services at or from a place outside Australia; and
(eb) the other person receives the DSGL services at a place outside Australia; and
(f) either:
(i) the provider does not hold a permit under section 11 authorising the provision of the DSGL services; or
(ii) the provision of the DSGL services contravenes a condition of a permit that the provider holds under section 11; and
(g) there is no notice in force under subsection 14(1) in relation to the provider and the provision of the DSGL services.
Penalty: Imprisonment for 10 years or 2,500 penalty units, or both.
Absolute liability
(2) Absolute liability applies to paragraph (1)(c).
Exceptions
(2A) Subsection (1) does not apply if:
(a) the DSGL services are provided by a person in circumstances where a foreign work authorisation (within the meaning of Part IXAA of the Defence Act 1903) that is in force authorises the person to perform work for, or on behalf of:
(i) a military organisation (within the meaning of that Part) of a foreign country; or
(ii) a government body (within the meaning of that Part) of a foreign country; and
(b) the person provides the DSGL services in the course of performing the work authorised by the foreign work authorisation.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2A): see subsection 13.3(3) of the Criminal Code.
(2B) Subsection (1) does not apply if:
(a) the DSGL services are provided by a person in circumstances where a foreign work authorisation (within the meaning of Part IXAA of the Defence Act 1903) that is in force authorises the person to provide training to:
(i) a military organisation (within the meaning of that Part) of a foreign country; or
(ii) a government body (within the meaning of that Part) of a foreign country; and
(b) the DSGL services provided solely consist of the training that is authorised by the foreign work authorisation.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2B): see subsection 13.3(3) of the Criminal Code.
(3) Subsection (1) does not apply if:
(a) the DSGL services are provided in relation to:
(i) goods that are an Article 3(1) US Defence Article; or
(ii) goods that are an Article 3(3) US Defence Article; or
(iii) DSGL technology in relation to original goods; and
(b) the DSGL services are provided by an Australian Community member or by a member of the United States Community; and
(c) the DSGL services are provided to an Australian Community member or a member of the United States Community; and
(d) the DSGL services are 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 provision of the DSGL services, the following are listed in Part 1 of the Defense Trade Cooperation Munitions List:
(i) if the DSGL services are provided in relation to original goods or DSGL technology in relation to original goods—the original goods;
(ii) if the DSGL services are provided in relation to incorporated goods—any of the original goods incorporated in the incorporated goods; and
(f) at the time of the provision of the DSGL services, the following are not listed in Part 2 of the Defense Trade Cooperation Munitions List:
(i) if the DSGL services are provided in relation to original goods or DSGL technology in relation to original goods—the original goods;
(ii) if the DSGL services are provided in relation to incorporated goods—any of the original goods incorporated in the incorporated goods.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code.
(4) Subsection (1) does not apply if:
(a) the DSGL services are provided by or on behalf of a person or body to an officer or employee of the person or body; and
(b) the officer or employee is a citizen or permanent resident of a foreign country that is specified in an instrument under subsection 15(4A); and
(c) the provision of the DSGL services occurs in the course of the officer or employee’s duties as an officer or employee.
Note: A defendant bears an evidential burden in relation to the matter in subsection (4): see subsection 13.3(3) of the Criminal Code.
(5) Subsection (1) does not apply if:
(a) the DSGL services are provided in support of a lawful supply of DSGL goods or DSGL technology; and
(b) the DSGL services solely consist of training with respect to, or the performance of, maintenance relating to the DSGL goods or DSGL technology; and
(c) the maintenance covered by the training, or which is performed, is limited to inspection, testing, calibration or repair (including overhaul, reconditioning and one‑to‑one replacement of any defective items, parts or components); and
(d) the maintenance covered by the training, or which is performed, does not include any modification, enhancement, upgrade or other form of alteration or improvement that:
(i) enhances the performance or capability of the DSGL goods or DSGL technology; and
(ii) is not only an alteration or improvement in relation to the reliability or maintainability of the DSGL goods or DSGL technology.
Note: A defendant bears an evidential burden in relation to the matter in subsection (5): see subsection 13.3(3) of the Criminal Code.
(6) Subsection (1) does not apply if:
(a) the DSGL services are provided 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 provision of the DSGL services occurs in the course of the person’s duties as such a person; and
(c) the DSGL services are not provided in relation to DSGL goods or DSGL technology that is:
(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.
Note: A defendant bears an evidential burden in relation to the matter in subsection (6): see subsection 13.3(3) of the Criminal Code.
(7) Subsection (1) does not apply if:
(a) the DSGL services are provided to a person who holds a covered security clearance; and
(b) the DSGL services are not provided in relation to DSGL goods or DSGL technology that is:
(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.
Note: A defendant bears an evidential burden in relation to the matter in subsection (7): see subsection 13.3(3) of the Criminal Code.
(7A) Subsection (1) does not apply if:
(a) the DSGL services are provided in connection with a lawful supply of DSGL goods or DSGL technology that occurred before the commencement of this section; and
(b) the DSGL services are provided under a contract, agreement or arrangement entered into before the commencement of this section.
Note: A defendant bears an evidential burden in relation to the matter in subsection (7A): see subsection 13.3(3) of the Criminal Code.
(8) Subsection (1) does not apply in the circumstances prescribed by the regulations for the purposes of this subsection.
Note: A defendant bears an evidential burden in relation to the matter in subsection (8): see subsection 13.3(3) of the Criminal Code.
Geographical jurisdiction
(9) Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to an offence against subsection (1) of this section.
Definitions
(10) In this section:
place includes:
(a) a vehicle, vessel or aircraft; and
(b) an area of water; and
(c) a fixed or floating structure or installation of any kind.
Section 10C - Defence Trade Controls Act 2012 - Offence—provision of DSGL services outside Australia | Zoe