Scenarios to help you clarify your situation
The Defence Trade Controls Act places controls on the intangible export of technologies specified on the Defence Strategic Goods List (DSGL) that are a part of applied scientific research from a person in Australia to another person outside of Australia. In some instances applied scientific research at the University will require permission from Defence Export Controls (DEC), a body within the Department of Defence.
Controls placed on transfer depends on the kind of supply, and the manner in which that supply takes place. To help you understand this, please see the following example scenarios. DEC also provides training modules that contain examples and explanations of scenarios applicable to research. For access to scenarios produced by DEC, please see here, or for access to the DSGL tool see here.
Kate has a telephone conference with her research partners in Germany. During that conversation,
- Kate orally provides her colleagues with a password to access a cloud server, so that they can share controlled DSGL technology. The oral supply exception does not apply as Kate is providing access to DSGL technology. Therefore, a permit is required.
- Kate discusses DSGL technology. The oral supply exception applies and therefore a permit is not required. However, as mentioned above, it is highly unlikely that controlled technology will ever be conveyed orally.
Steve in Australia uploads DSGL technology to his cloud storage.
- Steve then travels overseas and accesses that technology whilst overseas. No supply has occurred and a permit is not required. Supply must be from one person to another person outside of Australia.
- Steve gives the password to his cloud storage to Max, his research partner located in Switzerland. This is supply, as Steve has provided access to DSGL technology, and a permit is required.
Kelly saves DSGL technology to her email account while in Australia and then accesses that technology when she is in the UK for a conference. A permit is not required, even if Kelly passes that technology to another person while she is in the UK because the supply is occurring wholly outside of Australia.
Holly provides a username and password to a database containing DSGL technology to her colleague located in Australia. A permit is not required, even if Holly’ s colleague continues to access the technology on that database when she travels overseas because the supply occurred wholly inside of Australia.
A workshop where only members from a select group can access a dual-use DSGL technology, for example with a username and password, is supply and not publication and requires a permit.
I plan to publish in a journal a scientific paper describing the results of my research, which is on technology listed in the DSGL. Do I need a permit to send a copy to my publisher outside of Australia?
- If your technology is listed on Part 1 of the DSGL and is part of applied research, you will need a supply permit to send a copy to your publisher abroad, and to send a draft copy to co-authors located overseas.
- If your technology is listed on Part 2 of the DSGL (dual use), a permit is not needed to send a paper to a publisher as this is activity in preparation for publication, and is exempt as ‘pre-publication activity’. Sending a draft of the paper to co-authors located overseas is also exempt and a permit is not needed, as this is also ‘pre-publication activity’. A permit is also not required to publish technologies listed on Part 2 of the DSGL (dual use,) this includes publishing in a scientific journal, on a blog or on a website.
Do I need a permit for a visiting researcher to work in my laboratory?
- If your laboratory is in Australia, you do not require a permit as this occurs wholly in Australia.
- However, if the researcher returns to their home country outside of Australia, a permit will be required to supply DSGL technology that is part of applied scientific research to that scientist for further collaboration or writing up of results. A permit is not required to send a draft publication about technology specified on Part 2 of the DSGL to your collaborator for comment and input, as this is pre-publication activity, which is exempt from controls.
- Sharing applied scientific research orally to the collaborator overseas will not require a permit unless you are providing access to DSGL technology or it is for use in a Weapon of Mass Destruction Program or for military end-use.
I teach a university graduate course on design and manufacture of something specified on the DSGL. The course will take place entirely in Australia. Many of the students are non-Australian persons. Do I need approval to teach this course?
- No, supplying DSGL technology wholly within Australia is not subject to export controls and a permit is not required.
- If you are teaching this course at a foreign university outside of Australia, you will not require a permit as the supply is wholly outside of Australia. NOTE: Please discuss this with REI if you are doing this or planning to do this.
- If the course is offered as an online course and students located overseas are enrolled, then you will require a permit, as this is a supply of DSGL technology to students overseas.
- If the material you are teaching in the online course to students located overseas is already in the public domain, such as available in textbooks and/or published in journal articles, then a permit is not required.
DTC Act: Common questions
What do you mean by ‘technology’?
Under the DTC Act, the definition for technology is “specific information necessary for the development, production or use of controlled goods”.
Technology can take the form of:
- ‘technical data’, such as blue-prints, plans, diagrams, models, formulae, tables, designs and specifications, manuals and instructions written or recorded on other media or devices,
- ‘technical assistance’, such as instructions, skills, training, working knowledge and consulting services that involve the transfer of technology.
The technology (information) related to an item listed on the DSGL that is subjected to control applies only to the part that is ‘required ’ for the development, production or use of the controlled item. ‘Required’ is defined as “peculiarly responsible for achieving or extending the controlled performance levels, characteristics or functions”.
A lot of research at the University can be defined as dual use. Would these require a permit under the DTC Act?
Most research at the University could be defined as basic scientific research and this is exempt from controls and does not require a permit. If your research is not basic scientific research, then please check whether your research meets the specific definition for ‘dual use’ under the DTC Act.
To determine whether your research can be defined as dual use under the DTC Act, you need to assess:
- whether your applied scientific research involves an item specified on Part 2 of the DSGL, that is, the item may be used for commercial purposes, but may also be used in military systems or for weapons of mass destruction purposes; and
- whether your research involves technology (information, data or instructions) that is specific or detailed enough to be solely relied on and directly used to develop, produce or use a DSGL listed item. Defence Export Controls is also advising that for DSGL Part 2 dual use items, the technology must be one step away from a military or weapon of mass destruction use for a permit to be required.
A permit for your research is only required under the DTC Act if your research involves information about an item listed on the DSGL that meets this specific threshold, and you are intending to send this information electronically to a person outside of Australia. If the information is too generic and not immediately applicable, where more work and knowledge is required for that research to be used to develop, produce or use a DSGL Part 2 listed item, then a permit is not required. If the technology is already available in the public domain, then a permit is also not required.
Would I need a permit to work with an attenuated version of a pathogen that is listed on Part 2 (dual use) of the DSGL?
Whether you need a permit to undertake certain applied research depends on the nature of your work. If you are intending to send the actual pathogen specified on Part 2 of the DSGL (dual use items) out of Australia in the physical form, then you may require an export permit. This includes natural (wild type), enhanced and modified (including genetically modified) DSGL listed pathogens, even if they have been attenuated or inactivated. Please use the DSGL Tool to find out whether you need an export permit.
Simply using a DSGL listed pathogen does not inherently mean that you need a permit under the DTC Act, and there are no controls on technology or information for the use of a DSGL listed pathogen. Exemptions also apply to basic scientific research and technology already in the public domain where you do not need a permit. Please use the DSGL Tool to find out whether you need a permit for your particular situation.
If your research is not basic scientific research, and involves technology ‘required’ for the development and production of DSGL listed pathogens, then you may need to have a permit if you are to share this technology with a person outside of Australia. To meet the ‘required’ threshold, the technology must be the “ specific information or portion of technology that is peculiarly responsible for achieving or extending the controlled performance levels, characteristics or functions of a controlled item ” necessary for the development or production of DSGL listed pathogen. If the information is not specific or detailed enough to be solely relied on and directly used to develop or produce a DSGL listed pathogen, then that technology is not controlled, as it has not met the ‘required’ threshold.
Examples related to this are:
You may require a permit : If you are sending to a person outside of Australia a novel method (‘technology’) to develop or produce a DSGL listed pathogen (including technology for enhancing or modifying the pathogen), and that technology is specific to that DSGL listed pathogen and not generic development or production technology that apply to pathogens not specified on the DSGL.
You do not require a permit : If the technology or information is already in the public domain.
Written DNA sequences of controlled biological materials are not controlled and you do not need a permit to provide sequences to overseas collaborators, even if the information is not in the public domain.
Would putting DSGL technology on a cloud server require a permit under the DTC Act?
Storing DSGL technology on a cloud server and accessing that technology yourself, whether in Australia or overseas, does not require a permit under the DTC Act. The DTC Act regulates ‘supply’ of DSGL technology from a person in Australia to another person located outside of Australia. Export controls are not determined by where the DSGL technology is stored or where the storage is located. Whether a permit is required depends on whether a person in Australia supplies, including giving access to, DSGL technology to another person outside of Australia regardless of the method. Supply must occur from one person to another, and you cannot supply to yourself.
A common situation in multinational research collaborations is where researchers store information and research findings in a shared environment such as a server, repository, document-sharing program or online data sharing environment. You may need to apply for a permit under the DTC Act when doing the following:
- Create new ‘DSGL technology’ as the outcome of applied scientific research, and upload it to a shared environment so that it becomes accessible by an individual or a foreign corporate entity outside Australia;
- Download ‘DSGL technology’ from your collaborator, conduct further applied scientific research and then upload the outcome of that additional research to a shared environment so that it becomes accessible by an individual or a foreign corporate entity outside Australia;
- Contribute to furthering ‘DSGL technology’ as a part of applied scientific research while it remains in the shared environment using remote access technology (i.e. without actually downloading the technology), and that ‘DSGL technology’ continues to be accessible by an individual or a foreign corporate entity outside Australia; or
- Provide the username/password or other information required to gain access to shared environment containing ‘DSGL technology’ as a part of applied scientific research to an individual or a foreign corporate entity located outside Australia, even if they provide this information orally.