Commonwealth Consolidated Acts Commonwealth Consolidated Acts(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.
(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.