Due to the complexity of export controls and the rapid pace of changes in the field, ECAG has launched the "In a Nutshell" series. This initiative aligns with our commitment to simplify and clarify the essentials of export controls. We invite you to suggest topics you'd like us to summarise in the "In a Nutshell" series. Let us know what you need demystified.
Introduction
Since the AUKUS announcement on 15 September 2021, it has been recognised that in order to fully realise the goal of enhancing cooperation on defence capabilities, creation of a largely export-licence-free environment across the AUKUS nations would be needed. The desire to create this environment has prompted Australia, the UK, and the US to amend their existing control laws and regulations to create exemptions for transfers to and between AUKUS nations. Detail on the various exemptions is available in other ECAG articles. This article is a high-level summary of the key dates and timelines for implementation of the exemptions.Â
Australia
Defence Trade Controls Amendment Act 2024 (DTC Amendment Act)
In a nutshell:Â Amends the Defence Trade Controls Act 2012Â to:
Create three new offences (deemed exports, deemed re-exports/re-transfers and provision of DSGL services); andÂ
Create an exemption to the UK and the US from Australia’s export control permit requirements.
Key dates:
27 March 2024: DTC Amendment Act passed in Parliament.
27 September 2024: DTC Amendment Act commences.
27 March 2025: The offence provisions in the DTC Amendment Act commence.
Is the wording final? Yes, given passage of the DTC Amendment Act.
Defence Trade Legislation Amendment Regulations (DTL Amendment Regulations)
In a nutshell:Â Amends Defence Trade Control Regulations 2013 and Customs (Prohibited Exports) Regulations 1958, to provide the additional details needed for the DTC Amendment Act.Â
Key dates:
1 May 2024: Draft DTL Amendment Regulations released for public consultation.
31 May 2024: Public consultation closes.
3 July – 1 August 2024: DTL Amendment Regulations to be considered by the Executive Council.
27 September 2024: DTL Amendment Regulations commence.
Is the wording final? No – public consultation is now open, however the final version will likely closely resemble the current draft.
United Kingdom
Draft Open General Licence (OGL) for the AUKUS Partnership
In a nutshell:Â Proposes to create a new OGL to allow transfers of UK-controlled items to or between Authorised Users in Australia, the UK or the US, provided the items are not excluded.
Key dates:
1 May 2024: Draft OGL released for public comment.
1 July 2024: Public comment period closes.
TBC: OGL for AUKUS Partnership comes into effect.
Is the wording final? No – public comments are being solicited.
United States
Proposed rule 89 FR 35028 to amend the International Traffic in Arms Regulations (ITAR)
In a nutshell:Â Proposes to amend the ITAR to:
Create the AUKUS exemption, i.e., remove the need for a license or other approval for transfers of defense articles or defense services to or within ‘authorized users’ in Australia, the UK, or the US, provided the defense articles or services are not excluded.
Set timeframes for expedited processing of export licenses for transfers of excluded defense articles and/or defense services to or between Australia, the UK, the US, and Canada.
Key dates:
April 2024: Biden Administration does not certify that Australia and the UK have a system of export controls comparable to those of the United States.
1 May 2024: Proposed rule to amend the ITAR released for public comment.
31 May 2024: Public comment period closes.
18 August 2024: Next reporting deadline for Biden Administration, however the certification of comparability may be made prior to this date.
TBC (after positive certification of comparability): final rule amending the ITAR released.
Is the proposed rule wording final? No – public comments are being solicited.Â
Interim final rule 89 FR 28594 to amend the Export Administration Regulations (EAR)
In a nutshell:Â Amends the EAR to create the AUKUS exemption, i.e., remove almost all license requirements for transfers of EAR-controlled items to and between Australia, the UK, and the US.
Key dates:
19 April 2024: Interim final rule released (effective immediately) for public comment.
3 June 2024: Public comment period closes.
Is the proposed rule wording final? Yes, though the Bureau of Industry and Security (BIS) may alter the interim rule if warranted by public comments. Â
TakeawaysÂ
Australia – as of 27 September 2024:
Exemption for UK and US can be used, provided the transferor has opted in for an AUKUS Defence Client Registration Number (DCRN). Recipients will not need to be registered with Defence.
New Australian export permits will be required for non-exempt activities.
United KingdomÂ
Current UK export licencing requirements continue to apply for exports from the UK to Australia and the UK.
When effective, the OGL for the AUKUS Partnership can be used for eligible items provided the transferor, consignees and recipients are all Authorised Users.
United States
ITAR:Â Current ITAR licensing requirements continue to apply for exports from the US to Australia and the UK. When effective, the ITAR exemption can be used for eligible defense articles and/or defense services, provided all Australian, UK and US parties to the transaction are authorized users.
EAR:Â Exemption for Australia and the UK is now effective and can be used.
ECAG remains committed to keeping you well-informed about updates, changes, and opportunities for engagement with government bodies and other relevant stakeholders. We will ensure you have access to the latest information and resources to actively participate in discussions and decision-making processes that impact this area.
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