Defence Trade Controls & Sanction Compliance?

There are a number of pieces of legislation and government departments dealing with exports of prohibited and restricted materials and technologies.  Unfortunately there is not, as one would expect, one complete and all-encompassing list of what may be exported and what may not be exported.  This patchwork of laws, regulations and lists complicates understanding and compliance but the following material seeks to take a simplistic and non-technical approach to understanding the export restrictions regime (the “Regime”).

Sanctions Activities & Export Controls Compliance Form At Risk Elements Guide

The fundamental premise

The Regime aims to stop goods and technology that can be used as (or used for creating) chemical, biological and nuclear weapons, military goods and technologies or goods and technologies that have an intrinsic strategic value of one form or another.  The Regime also controls the export of what are called dual use materials which are civilian technologies that might have a military application (like a guidance system in a model aircraft that might also be used to deliver ballistics).  The underlying purpose of the prohibition might be to preserve a military advantage, to deprive a country or a group from accessing a potentially dangerous technology or enabler or to apply sanctions against a country or a group for political purposes.  In some circumstances, the government might also seek to control the export of other more general types of goods or technologies to a particular country in order to supply diplomatic pressure to that country.  An example of that occurred when Australia prohibited the export of oil and gas technologies to Iran, although that prohibition has now been lifted.

Tangible and intangible exports

The Regime applies to both tangible and intangible exports so, in the same way that  export of pathogens that might be used as a chemical weapon is banned, the exchange of idea about how such a pathogen might be transmitted is also regulated.  In other words, the Regime defines a boundary of academic freedom and freedom of expression and exchange of ideas, the underlying rationale being that the imposition of that boundary is necessary to protect national security.

How do I know if something I intend doing exposes me to risk?

You can determine whether or not something you intend to do exposes you to risk, by stepping through the following questions, the answers to which tell you if you have a problem and what you should do about it:

If you require further information about the Australian Sanctions Compliance Form, please contact Griffith Graduate Research School to discuss further.

Questions

QUESTION ONE:  AM I ON THE “AT RISK ELEMENTS GUIDE”?

To ensure time is not spent on unnecessary compliance activities, the university has determined that some of its elements deal with technology and subject matter that might be subject to the Regime and some of its elements do not.  Please check the At Risk Elements Guide before proceeding any further.

Yes, I am in an “At Risk Element” -  Your activities might attract some degree of risk under the Regime so further consideration is necessary.  Go to Question 2.

No, I am not in an “At Risk Element” -  It is extremely unlikely that anything you are doing will expose you to risk unless you are engaged in activities that have a very obvious military application or you are engaged with people that you know either are or are at likely to be at odds with the Australian Government.  If you are satisfied your activity is, on its face innocuous, then you need go no further and you can be satisfied your activity will not attract risk under the Regime.  If you remain concerned, go to QUESTION 2.

QUESTION TWO:  AM I DEALING WITH A PERSON OR AN ORGANISATION SUBJECT TO SANCTIONS?

There are a range of people and organisations that are subject to specific financial and other sanctions and travel bans imposed by the Australian Government.  The Department of Foreign Affairs and Trade keeps the Consolidated List which is a list of all persons and entities who are subject to targeted financial sanctions or travel bans under Australian sanctions laws.   People and organisations find themselves on the Consolidated Risk for a range of reasons.  Many have terrorist connections, a history of financing or aiding terrorism or connections with egregious regimes or crimes against humanity.  You can access the Consolidated List and can search using the control-F function.  You should also conduct a search of the Consolidated List to ascertain whether or not any relevant individual has studied at or worked with an organisation that is on the Consolidated List.

Does the arrangement/project involve a prohibited person or a prohibited entity?

Yes, my intended activity involves a prohibited person or a prohibited entity or there is a connection with a prohibited person or a prohibited entity. -  The proposed activity may constitute a breach of the Regime without a permit issued by the Department of Foreign Affairs and Trade.  If you wish to proceed and investigate the possibility of obtaining a permit, you need first to review and consider the university’s Sanctions Compliance Policy to make sure proceeding with the arrangement aligns with the university’s expectations in this field.  If you still wish to proceed, if the intended activity involves admission of an HDR candidate, follow the university’s Sanctions Compliance Process relating to any HDR and Research program applications and the associated Sanctions Activity Compliance Form.  If the matter involves a research project contact Research Ethics and Integrity and if the matter involves a commercialisation arrangement, notify your contact at Griffith Enterprise.  If the matter does not involve research or commercial activity, you might consider raising the issue as a legal matter with Legal Services.

Remember, even if you do obtain a permit making the arrangement lawful, there remains a significant degree of risk in proceeding with an arrangement of this nature. For example, the scope of the arrangement might change over time so that it steps beyond the scope of the permit.

No, my intended activity does not involve a prohibited person or a prohibited entity and there is no connection with a prohibited person or a prohibited entity -  Go to QUESTION 3.

QUESTION THREE:  AM I DEALING WITH A COUNTRY OR SOMEONE CONNECTED WITH A COUNTRY WHICH IS SUBJECT TO SANCTIONS?

The countries and organisations that are subject to sanctions are listed by DFAT.  As at April 2016, the countries subject to sanctions are the Central African RepublicCrimea and SevastopolDemocratic People's Republic of Korea (North Korea)Democratic Republic of the CongoEritreaFormer Federal Republic of YugoslaviaGuinea-BissauIranIraqISIL (Da’esh) and Al-Qaida Lebanon, Libya, Mali, MyanmarRussiaSomaliaSouth SudanSudanSyriathe TalibanUkraineYemen and Zimbabwe.  These will change from time to time and we will update the list but if you dealing with a country that has recently been in the news as being at odds with Australia, we suggest you check the Sanctions Regimes.

Sanctions against a country might extend to a person or organisation connected with the country and such a connection will arise if the person or organisation is:

·         situated in or operating from a sanctioned country;

·         a corporation incorporated in the sanctioned country;

·         a citizen/national of a Sanctioned Country without Australian citizenship; or

·         have permanent residency status.

Just because you are dealing with a country or someone connected with a country that is subject to sanctions, doesn’t mean the activity is necessarily subject to sanctions.  Different sanctions will apply to different counties at different times and the current sanctions that are being applied will be updated in the Sanctions Regimes.

Yes, my intended activity involves a country or someone connected with a country that is subject to sanctions AND I have checked the Sanctions Regimes and the scope of sanctions seems to extend to my proposed activity -  The proposed activity may constitute a breach of the Regime without a permit issued by the Department of Foreign Affairs and Trade, you need first to review and consider the university’s Sanctions Compliance Policy to make sure proceeding with the arrangement aligns with the university’s expectations in this field.  If you still wish to proceed, if your intended activity involves admission of an HDR candidate, follow the university’s Sanctions Compliance Process relating to any HDR and Research program applications and the associated Sanctions Activity Compliance Form. If the matter involves a research project, contact Research Ethics and Integrity and if the matter involves a commercialisation arrangement, notify your contact at Griffith Enterprise. If the matter does not involve research or commercial activity, you might consider raising the issue as a legal matter with Legal Services.

Remember, even if you do obtain a permit making the arrangement lawful, there remains a significant degree of risk in proceeding with an arrangement of this nature. For example, the scope of the arrangement might change over time so that it steps beyond the scope of the permit.

Yes, my intended activity involves a country or someone connected with a country that is subject to sanctions BUT I have checked the Sanctions Regime and the scope of sanctions does not seem to extend to my proposed activity -  If you wish to proceed and investigate the possibility of obtaining a permit, you need first to review and consider the university’s Sanctions Compliance Policy to make sure proceeding with the arrangement aligns with the university’s expectations in this field.  If you still wish to proceed, if your intended activity involves admission of an HDR candidate, follow the university’s Sanctions Compliance Process relating to any HDR and Research program applications and the associated Sanctions Activity Compliance Form.  If the matter involves a research project, as a matter of prudence, you should contact Research Ethics and Integrity or if the matter involves a commercialisation arrangement, you should notify your contact at Griffith Enterprise.  If the matter does not involve research or commercial activity, you might consider raising the issue as a legal matter with Legal Services.  In any event, go to QUESTION 4.

No, my intended activity does not involve a country or someone connected with a country that is subject to sanctions -  Go to QUESTION 4.

QUESTION FOUR:  AM I PUBLISHING OR DISCLOSING INFORMATION ABOUT MILITARY TECHNOLOGIES, TECHNOLOGIES THAT MIGHT BE USED FOR MILITARY PURPOSES OR TECHNOLOGIES THAT ARE OF NATIONAL STRATEGIC IMPORTANCE?

It is a criminal offence to publish (whether in an Australian journal or a foreign journal) or to make a disclosure to a foreigner of a controlled military or strategic technology.

Military technologies, technologies that might be used for military purposes or technologies of national strategic importance are defined by the relevant legislation as those technologies listed on the Strategic Goods List.  The Department of Defence provides a searchable database of these technologies.  You should search this database to ascertain if your project involves a technology listed on the Strategic Goods List.

If your technology is on the Strategic Goods List then publications or disclosures of your research will be unlawful unless:

·         you have a Department of Defence permit; OR

·         the publication or disclosure constitutes what is called basic scientific research (which is defined as 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); OR

·         the publication or disclosure constitutes material that is already wholly within the public domain.

Yes, my intended activity involves a technology listed on the Strategic Goods List -  publications or disclosures in a foreign context may constitute a criminal offence.   If the matter involves a research project contact Research Ethics and Integrity or if the matter involves a commercialisation arrangement, notify your contact at Griffith Enterprise.  If the matter does not involve research or commercial activity, you might consider raising the issue as a legal matter with Legal Services.

No, my intended activity involves a technology listed on the Strategic Goods List -  Go to QUESTION 5.

QUESTION FIVE:  AM I EXPORTING OR BROKERING THE EXPORT OF MILITARY MATERIALS, MATERIALS THAT MIGHT BE USED FOR MILITARY PURPOSES OR MATERIALS THAT ARE OF NATIONAL STRATEGIC IMPORTANCE?

It is a criminal offence to export or broker the export of a controlled military or strategic material.

Military materials, materials that might be used for military purposes or materials of national strategic importance are defined by the relevant legislation as those materials listed on the Strategic Goods List searchable database.  You should search this database to ascertain if your project involves a material listed on the Strategic Goods List.

If your material is on the Strategic Goods List then export or foreign dealings with the material will be unlawful unless you have a Department of Defence permit. More information on this is available at the Department of Defence website.

Yes, my intended activity involves a material listed on the Strategic Goods List -  export or foreign dealings with the material may constitute a criminal offence.   If the matter involves a research project, contact Research Ethics and Integrity or if the matter involves a commercialisation arrangement, notify your contact at Griffith Enterprise.  If the matter does not involve research or commercial activity, you might consider raising the issue as a legal matter with Legal Services.

No, my intended activity involves a material listed on the Strategic Goods List -  Go to QUESTION 6.

QUESTION SIX:  AM I EXPORTING OR SUPPLYING GOODS OR SERVICES THAT MIGHT BE USED OR RESUPPLIED FOR A WEAPONS OF MASS DESTRUCTION PROGRAM?

There is a catch all control on the supply or export of goods or services that might be used or resupplied for use in a weapons of mass destruction program.  The AG Common Control website lists relevant goods and services and you should check it.

Yes, my intended activity involves supply or export of goods or services that might be used or resupplied for use in a weapons of mass destruction program -  supply or export of may constitute a criminal offence.   If the matter involves research, contact Research Ethics and Integrity or if the matter involves a commercialisation arrangement, notify your contact at Griffith Enterprise.  If the matter does not involve research or commercial activity, you might consider raising the issue as a legal matter with Legal Services.

No, my intended activity involves supply or export of goods or services that might be used or resupplied for use in a weapons of mass destruction program -  You should not be concerned that you are involved in export of prohibited and restricted materials or technologies.