Submission to the Review of the Defence Trade Controls Act 2012
1. Update the Defence Trade Controls Act
2. Incorporate all the provisions of the Arms Trade Treaty
3. Increase the transparency of Australian defence exports
4. Institute regular parliamentary reviews of defence trade controls treaty obligations
5. Create a consistent import/export reporting process, then divide the information
requirements between Departments of Defence; Foreign Affairs and Trade; and Home Affairs
The current act contains a vast number of categories of controlled goods, does not align with
Australia’s obligations under the Arms Trade Treaty and has led to inconsistent reporting on Australia’s
defence exports. This submission discusses means to remedy these issues, including concerns we may
not be meeting our treaty obligations, in an updated act. It is organised under the four main issues of:
Arms Trade Treaty, transparency, governance, and other treaty obligations.
Arms Trade Treaty
When Australia ratified the Arms Trade Treaty (ATT) in 2014 it was deemed that no legislative
arrangements needed to be made because our existing legal and policy framework sufficed. However,
recent issues have highlighted this may not be the case. Any update of the Defence Trade Controls Act
should fully incorporate the provisions of the Arms Trade Treaty.
The treaty requires that all arms transfers are assessed and authorised on the likelihood of their
being used in gross breaches of human rights, or in violence against women. Authorisations for
transfers to Saudi Arabia since April 2016 would show that these provisions are not currently being
met. Saudi Arabia has an appalling record of women’s rights and is currently waging a war in Yemen
that has caused the “world’s worst humanitarian crisis.”1 A blockade prevented the arrival of food,
fuel, medicine, and humanitarian supplies.2 By December 2017, bombing reportedly killed 10 000
civilians3 and according to the UN children’s agency, an average of five children a day are killed or
injured in the violence.4
Australia is in the process of developing a new whole of government National Action Plan (NAP) on
Women, Peace and Security (WPS). Arms control is an important component of the WPS agenda. UN
Security Council Resolution 2106 on WPS notes “the provision in the Arms Trade Treaty that exporting
States Parties shall take into account the risk of covered conventional arms or items being used to
commit or facilitate serious acts of gender-based violence or serious acts of violence against women 2 and children.”5 During the life of Australia’s National Action Plan on Women, Peace and Security 2012–
18, civil society repeatedly raised concerns about the implementation of the gender provisions of the
ATT at the Annual Civil Society Dialogues on WPS. 6 These concerns need to be met in the
operationalisation of Defence trade controls. They should also be included in and reported against in
Australia’s next NAP.
States parties to the ATT are required to submit annual reports on authorised and actual transfers,
their quantity and/or value, as well as the final importing state (or, in the case of imports, the exporting
state). Transparency is key to the effective implementation of the ATT.
Australia completed the baseline questionnaire as well as the two subsequently required reports.
However, the submitted reports lack a significant amount of information. No effort has been made to
include any exported ammunition. There is are serious discrepancies between the figures reported
against the ATT and publicly available figures from Defence, with no explanation of the discrepancy.
The ATT reporting only provides figures on authorised exports, not the actual exports.
Data on actual exports, once held by Customs and Border Protection, is now held by the new
Department of Home Affairs. Even Freedom of Information (FOI) requests7 have been denied access
to the data expected under the ATT on the grounds of breach of commercial confidence. The relevant
data is recorded in the Integrated Cargo System (ICS). But the data was deemed “sufficiently secret in
that only the importer/exporter itself (or those acting on their behalf) would be aware of the data
relating to their importation/exportation activities.” However, this goes against the very principle and
purpose of the ATT and its reporting regime.
At present, the “importer/exporter views their data as valuable commercial information that has been
given to the Department in confidence for the limited purposes of assessing Customs duties.”8
If the “importer/exporter would not be aware, and is certainly not advised, that Department may disclose
the sensitive commercial information they provide”9 then the import/export process needs to be
updated and importers/exporters need to be advised as such, to ensure compliance with the ATT.
An updated Defence Trade Controls Actshould also allow for greater parliamentary oversight. In 2017,
Defence refused to answer questions during Senate Estimates relating to Australia’s obligations under
the ATT. The safety and integrity of Australia’s obligations under the ATT are of paramount significance
to global peace and security and the rules based global order. Adherence to treaty requirements is
not something that should held behind closed doors, but should be subject to regular parliamentary
scrutiny, through regular review by the Joint Standing Committee on Treaties or the Joint Standing
Committee on Foreign Affairs, Defence and Trade.
Australia’s reports against the ATT are prepared and submitted by the Department of Foreign Affairs
and Trade (DFAT). Neither a link, nor the reports themselves are available on the DFAT website. An
FOI request to the Department of Defence for the information required under the ATT was denied on
the basis that information didn’t exist. 1010 Department of Defence reference – FOI 290/17/18
While the Defence Export Controls statistics webpage11 contains some useful data available to the
public, there is no archive of this information for civil society or academia to research trends and track
changes. The data on that page should include key information required under the ATT. Then, all that
data, including in its raw form, should be made available to the public for analysis. While some would
need to remain classified, the information expected under the ATT should not be.
The entire process of defence import/export needs to have a consistent reporting process, with
information requirements then divided as appropriate between DFAT, Defence and Home Affairs. This
consistency is important for traceability, oversight and transparency. In turn, it would mean we are
better able to tell if we are meeting our obligations under international law. Creating such a process
would require consideration of the item(s) to be exported, rather than taking the agency’sinformation
requirements as a start point and may require building a new e-platform.
Other treaty obligations
The Defence Trade Controls Act also needs to address Australia’s other treaty obligations relating to
chemical, biological, radiological and nuclear weapons and technology. The international treaties on
land mines, cluster munitions, biological and chemical weapons all existed prior to the Defence Trade
Controls Act. Other controls are implemented through the Weapons of Mass Destruction Act. Any
attempt to further strengthen Australia’s attempts to protect the world from such weapons would be
About the author
This submission has been prepared by Susan Hutchinson, a PhD candidate at the Coral Bell School of
the Australian National University. Susan is an expert in civil-military interaction. Her research and
opinions have appeared in The Conversation and on the blogs of the Lowy Institute, Australian
Strategic Policy Institute, Huffington Post, New Mandala and Broad Agenda. Susan has consulted to
the Department of Defence, served in the public service and the Australian Army. She founded the
Annual Civil Society Dialogue on Women, Peace and Security and remains a member of the Australian
Civil Society Coalition on Women, Peace and Security. She is also the architect of the prosecute; don’t
perpetrate campaign to end impunity for conflict related sexual violence.
Submission to review of Defence Trade Controls Act Prepared by Susan Hutchinson
7 Department of Home Affairs reference – FOI Request: FA 18/02/01147, File Number: ADF2018/22816
8 Department of Home Affairs reference – FOI Request: FA 18/02/01147, File Number: ADF2018/22816
9 Department of Home Affairs reference – FOI Request: FA 18/02/01147, File Number: ADF2018/22816
Submission to review of Defence Trade Controls Act Prepared by Susan Hutchinson