Chapter 3
Conclusion and recommendations
Conclusion
3.1
The implementation of the Defence Trade Controls Act 2012 is nearing the
halfway point. The committee is pleased to note the work done to date and, in
particular, the consultative atmosphere created by the Strengthened Export
Controls Steering Group.
3.2
At this halfway mark, with legislative amendments and consequent changes
to the regulations being examined, the committee notes the concerns raised by
submitters that any legislative amendments will be subject to thorough
consultation. The committee wholeheartedly supports the words of Professor
Chubb in his letter to the Minister for Defence and the Minister for Industry,
covering the second Strengthened Export Controls Steering Group report:
The Steering Group considers that it is important that the
testing process also includes revised draft legislation, so that legislative amendments
recommended by the Steering Group have already been tested in practice and
exposed to broader stakeholder comment. I seek your support in enabling this
aspect of testing to occur in a timely way.[1]
3.3
The committee is also supportive of the Steering Group's next steps
regarding procedural fairness and regular legislative review which is
responsive to stakeholder needs over time. The committee urges Defence to be
mindful of the consultation issues which were detailed in the committee's
Interim Report on the Defence Trade Controls Bill 2011 and to support the
Steering Group in its efforts to ensure any legislative amendments will be
workable for all stakeholders.
3.4
The University of Sydney argued in its submission that at least four to
six weeks are required for stakeholders to consider an exposure draft of any
amendment bill. The committee agrees with this opinion and expects Defence to
do everything it can to facilitate adequate time for stakeholders to consider
any legislative amendments. The committee is also mindful that any legislative
amendments will affect the Defence Trade Controls regulations. It strongly
advises Defence to ensure that there is an appropriate amount of time allocated
to revising and testing any changes to the regulations as a result of proposed
legislative amendments.
3.5
From the evidence received from the steering group, the committee is
satisfied that the steering group process is working to ameliorate the concerns
of all stakeholders, including industry. It is with concern, however, that the
committee notes that similar progress is not being made with DECO.
Correspondence received confidentially by the Committee indicates that in one
instance at least DECO is amending some of its current processes, but that
unlike the steering group, DECO seems intent on increasing the scope of items
included on the military list and raising the barriers to obtaining export
approval. The confidential example provided indicates that in this case,
civilian items that have had been exported for some years to low risk
destinations are being restricted.
3.6
The committee notes that DECO has subsequently met with industry to work
through these specific issues and that significant progress appears to have
been made to alleviate its concerns. The committee, however, expects that DECO
will continue to work to implement the findings of the pilot program and will
align its current processes with the intent of the steering group's work,
seeking where possible to minimise the classification of items as military and
optimise certainty for companies seeking approvals.
3.7
Overall, the committee believes that Professor Chubb and the
Strengthened Export Controls Steering Group, the organisations involved in the
pilot program, as well as DECO and Defence, should be commended for the way in
which they have been able to work together on the implementation of the Defence
Trade Controls Act 2012. In the committee's view, the consultative model of the
Steering Group has significant benefits and the committee suggests that Defence
look to this model as it moves forward. The goodwill created by the Steering
Group process is also valuable and the committee urges that Defence use this
situation to create a lasting consultative mechanism for communicating with
stakeholders about future changes to export controls measures.
3.8
The committee acknowledges the hard work done by the Steering Group to
build goodwill in the consultative process and asks that Defence build on this
by reporting to the committee regarding the process it will use for consulting
stakeholders on any proposed legislative amendments and changes to the
regulations for the Defence Trade Controls Act 2012.
Recommendation 1
The committee
recommends that Defence report to the committee on the process it will use for
consulting stakeholders on any proposed legislative amendments and changes to
the regulations for the Defence Trade Controls Act 2012 before the committee's
next six-monthly review report. The committee expects the report will help reassure
stakeholders that the consultative process embodied by the Steering Group will
not fail at the conclusion of the implementation period.
Recommendation 2
Further to Recommendation 1 in the committee's first progress
report, the committee is keen to ensure that the intent of the steering group
guides any changes in the day-to-day processes of DECO as this will assist
transition to the provisions of the Defence Trade Controls Act 2012. The
committee therefore recommends that DECO examine the processing of applications
and licences in relation to measures being taken to implement the findings of
the pilot program and provide a report to the committee prior to the
committee's next six-monthly report. The committee is particularly interested
in how DECO will implement the steering group findings as regards industry
applications.
Chair
Senator Alan
Eggleston
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