Stephen Smith (Perth, Australian Labor Party, Deputy Leader of the House) Share this | Link to this | Hansard source

I have had the opportunity to speak to members interested in this message in the chamber. The member for Lyne has indicated that he sees a link between amendment (9) and amendment (13). The government is proposing to disagree to amendment (9). The member for Melbourne also wishes to speak on amendment (9). I think it would suit the convenience of the House if I dealt with amendments (1) to (8), (10) to (12), and (14) to (27) first. I think there is support for that. That is certainly the view expressed to me by the opposition. We can then deal with amendments (9) and (13) separately. There will be debate on those. I move:

That the amendments be considered immediately.

Question agreed to.

I would like to indicate to the House that the government proposes that amendments (1) to (8), (10) to (12), and (14) to (27) be agreed to, that amendment (9) be disagreed to and that amendment (13) be subsequently agreed to. I suggest therefore, to suit the convenience of the House, that we first consider amendments (1) to (8), (10) to (12), and (14) to (27) and, when those amendments have been disposed of, to consider amendments (9) and subsequently (13). I move:

That Senate amendments (1) to (8), (10) to (12), and (14) to (27) be agreed to.

Question agreed to.

I move

That Senate amendment (9) be disagreed to.

Last night the Senate passed a number of amendments to the Defence Trade Controls Bill 2011 which the Senate has passed back to the House for concurrence via this message. As we have seen, there are 27 amendments to the bill. Of these, 24 are government amendments, two were moved by the Australian Greens and passed with government support, and one was moved by the opposition.

The government supports the 26 amendments which it supported in the Senate and opposes amendment (9) for reasons which I will outline subsequently. The bill was debated and passed, together with the Customs Amendment (Military End-Use) Bill 2011, which has also been amended by the Senate. The government also supports this amendment and will deal with that bill subsequently.

The Australia-US Defence Trade Cooperation Treaty was signed in September 2007. The treaty will improve two-way trade between Australia and the US in Defence goods, services and technology by eliminating the need for export licences for members of an approved community. The bill also introduces strengthened export control measures by introducing protections on the intangible transfer overseas of sensitive technology on the Defence and Strategic Goods List, the DSGL, such as supply by electronic means as well as controls on brokering the supply of listed sensitive Defence goods and technology. This will eliminate identified gaps in Australia's export controls system, align Australia with accepted international best practice and support international efforts to prevent proliferation of sensitive technology.

In September 2008, the Joint Standing Committee on Treaties recommended that binding treaty action be taken. In September 2010, the US Senate recommended that the treaty be ratified. Defence commenced consultations on the proposed legislation with public information events at major cities around Australia in late 2010. Defence consulted with stakeholders, including the university sector, as early as May 2011 before a draft bill was released for public consultation in July 2011. Industry provided detailed comments, including through the Defence industry advisory panel, chaired by Mr Ken Peacock.

The Defence Trade Controls Bill was passed by the House in November last year. On 10 November last year the bill was referred to the Senate Scrutiny of Bills Committee and the Senate Standing Committee on Foreign Affairs, Defence and Trade for further consideration. The preliminary report of the Senate Standing Committee on Foreign Affairs, Defence and Trade, tabled in the Senate on 15 August this year, recognised the importance of the legislation and generally supported the intention of the bill. The committee recommended Defence conduct further consultations with the university and research sectors on the impact of controls on intangible transfers.

At the time, I thanked the committee for identifying areas where the bill could be improved by further consultation. Further consultations were necessary to ensure the bill did not include any unintended consequences that might impact adversely on the university and research sectors. I asked Mr Peacock and the Chief Defence Scientist, Dr Alex Zelinsky, to conduct those further consultations.

In mid-September I wrote to the committee outlining the proposals put forward by Mr Peacock and Dr Zelinsky and indicated in-principle support by the government. The government also supported the round table process chaired by the Chief Scientist, Professor Ian Chubb, the former Vice-Chancellor of the Australian National University.

The proposals put forward by Mr Peacock and Dr Zelinsky were considered by the Chief Scientist's round table process and, as agreed by participants in the round table process, have been into the bill as government amendments. The Chief Scientist made an important contribution, as did representatives of the university and research sectors who worked very constructively with him. While some individual participants maintained specific concerns, the round table process concluded on 21 September this year with an agreed way forward on a range of amendments to the bill. The committee—Mr Peacock, the Chief Defence Scientist, the Chief Scientist and the university and research sector—made significant recommendations which ensured an outcome that will protect our national security interest while responding to university and research sector concerns.

On 10 October, the government circulated proposed amendments to the legislation which reflected the agreed outcomes of the Chief Scientist's round table. The Senate last night voted in support of all these amendments as well as additional amendments put forward by the other parties in the Senate, as I have described. The government has taken up all of the recommendations put forward by Mr Peacock and by the Chief Scientist. The government also supported additional amendments put forward by other parties in the Senate. These amendments set a minimum time frame of two years for the steering group, put the terms of reference for the steering group into the legislation, name the Chief Scientist as the chair of the steering group and task the steering group to advise ministers on whether Australia's export control arrangements are not more restrictive than US regulations on university activities. (Extension of time granted)

The government is not able to support one amendment passed by the Senate last night which, in the government's view, undermines the intent of the legislation and would significantly weaken efforts to strengthen Australia's export controls. Amendment (9) relates to a proposed exemption for the outcomes of fundamental research. This does not reflect the agreed way forward of the Chief Scientist's round table. The amendment would effectively exempt from the bill anyone who claims to be conducting fundamental research. This would mean a far broader effect than that caused by the US exception for fundamental research, which only applies to research outputs. Research inputs are subject to US export controls; there is no US exception that allows controlled technology to be exported from the US for fundamental research without US government authorisation.

For these reasons the government opposes amendment (9) and seeks the support of the House to disagree to amendment (9).

Stuart Robert (Fadden, Liberal Party, Shadow Minister for Defence Science, Technology and Personnel) Share this | Link to this | Hansard source

To assist the House, I will put some brief comments to indicate why the coalition will be supporting the minister in his opposition to amendment (9).

On the subject of history: it is important to note that Prime Minister Howard signed the treaty between the government of Australia and the government of the United States of America concerning defence trade cooperation in September 2007 and that the Rudd government signed off on the subsequent implementation arrangements on 14 March 2008. Furthermore, the US Congress passed implementing legislation in September 2008, and the treaty received ratification consent by the US Senate on 29 September 2010. For two years they have been waiting for us to reach a point of decision.

This bill creates provisions for the establishment and management of the Australian defence industry in exporting goods and services to the US defence industry. Currently, Australian companies which need access to defence items or technology from the United States must seek an export licence from the US Department of State in accordance with the International Traffic in Arms Regulations: ITARS. The treaty removes the requirement for these licences to be obtained. The existing control regime has a focus on the export of physical goods, but the growth of technology and the provision of services over the intranet or through brokers is currently not being captured.

We firmly believe that there was insufficient consultation on this bill and on the resulting regulations—especially with the university sector, which will bear the full brunt of the legislation. The reaction has been mixed. Many concerns have been raised over the role of the US Department of State in approving Australian companies or individuals as trusted members of the Australian community. This process, in gaining such approval, is seen in some quarters as cumbersome, costly and time-consuming. Coupled with these concerns is the lack of confidence within the defence industry in the Australian defence controls office in making consistent decisions on what strategic goods can or cannot be exported. What is being proposed by the government remains unacceptable to the university sector, for reasons that have been made clear in submissions by Universities Australia and the University of Sydney.

There continues to be a fundamental difference of opinion between Defence and the sector about the scope of export controls in the US pertaining to research conducted in universities. The outcomes of the Chief Scientist's round table process are not sufficient because they do not guarantee that the university sector's key concerns about the scope of research activities to be controlled by the bill will be addressed. The government is asking the Senate, the Australian public research community and the House to accept its assurances that the government amendments will address unintended or unforseen consequences arising from the proposed trials. We are a little short of accepting the government's assurances on many issues. Given the complexity of the bill and the clear potential for negative impact on the public good—and, in particular, on the research sector—the Senate committee report reviewed the reforms proposed by the government and acknowledged that they were far from ideal. Both Universities Australia and the University of Sydney have suggested that the critical issue of Defence's controls of intangible supplies pertaining to university research, compared with the arrangements currently in place in the US, remain unresolved. At the very least we urge the government to ensure that Australia's system for the control of intangible supplies is no broader or more stringent in scope than the equivalent arrangements currently in place in the US and that they are in accord with the legal advice from White & Case.

We introduced amendments in the Senate to provide for the exclusion of research education information to be published in the public domain. The government has indicated to us in the strongest possible terms that our amendments will render the bill ineffective. The government's reasoning on this has been largely unconvincing; however, there is a time when it is necessary to err on the side of caution. This is one such time, given the serious subject matter encompassed by this bill and given the fact that the minister knows that I take bipartisan support on military operations and military engagement seriously. That bipartisanship means that I err on the side of caution if sufficient reasons have been raised that there could be an issue. We have been assured that the two-year transition period—it is in the Greens amendment, to their credit—which has been agreed to will give everyone breathing space with no penalties to be provided. The transitional period which the government has agreed to will enable all stakeholders to acquire an understanding of the bill's practical application. If it is proven to be unsatisfactory in any aspect, the bill can be amended at a later date, and I will champion its amendment if indeed the reassurances prove insufficient.

John Murphy (Reid, Australian Labor Party) Share this | Link to this | Hansard source

I wish to make some comments about the amended Defence Trade Controls Bill, which has generated concern among a number of very respected scientific research academics that I have consulted with. This bill in part seeks to implement new controls on intangible transfers—that is, transfers of information—relating to a wide variety of technologies with both military and civilian applications. The academics are concerned that the legislation, including the amendments, appears to produce the unintended consequence of significantly curtailing innovative research conducted in academic institutions.

It is clear that the Defence Trade Controls Bill does not intend to place undue restrictions on academic researchers or to control activities conducted in the course of normal academic research or education. However, the academics I have spoken with are very concerned that the original bill would not adequately protect against this possibility and would require amendment in order to protect the academic sector. I am aware of what happened in the Senate yesterday and I listened to the minister today.

At issue is the scope of impact of the legislation and its potential to subject to defence controls ordinary research activities across a range of fields. In particular, I believe it is sensible to exclude from controls basic and applied academic research conducted with the intent of generating knowledge and providing for the public good. Such research poses little risk to national security. It is not related to defence, munitions or other arms but, rather, the development of new technologies that support future industry and innovation. By contrast, potentially stifling this research poses significant risk for Australia's economic prosperity.

The shortcomings of this legislation's regulatory impact statement were highlighted in the Senate FADT Committee's preliminary report. Following the committee's preliminary report the academic sector engaged in consultations with Defence chaired by the Chief Scientist, Professor Ian Chubb. I am pleased that the consultations have resolved many of the concerns. The Senate committee's final report makes clear that this bill should not put universities in Australia at a disadvantage relative to their international counterparts.

Submission 11B to the Senate FADT Committee provides legal advice that the legislation presented to it would put in place stringent controls on public-good applied research that do not appear in comparable legislation in the United States, thus contradicting the committee's report. I understand that the Chief Scientist has other legal advice relating to the comparative disadvantage the legislation would cause for Australian academics. However, this evidence has not been part of the public record relating to this legislation or the Senate committee's inquiry. The Chief Scientist has publicly recommended that any potential negative impacts would be assessed and mitigated during the two-year trial period associated with the legislation. I am happy that the legislation now provides for this. I am convinced that Professor Chubb will seek positive outcomes for the sector during this period.

However, given the importance of this legislation and the potential for negative unintended consequences, the scientific research academics I have consulted with do not believe we can rely on post-legislative corrections to this bill to resolve the outstanding issue of comparative disadvantage. Under these circumstances, I trust that the legislation ensures that (1) it delivers on the post-legislation transitional arrangements that have been recommended by the Chief Scientist following round table discussions with Defence, the university sector and other stakeholders; (2) Australian university researchers are not placed at a disadvantage regarding export controls when compared with their colleagues in the United States; and (3) the Senate Foreign Affairs, Defence and Trade Legislation Committee plays a role in scrutinising the implementation of the export control regime.

The government believes we should not place undue restrictions on academic researchers or control activities conducted in the course of normal academic research or education. I want to put on the record here tonight that I trust that the two-year trial period provides anxious scientific research academics with a degree of comfort in this regard.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

I will speak to amendment (9) and amendment (13), which is coming up shortly, for the convenience of the House and to avoid having to repeat my remarks. Everyone who says that they support academic freedom and that they support Australia's independence in this Asian century will very soon have a chance to vote for it, because this bill, if it gets through in the form proposed by the government, will hamper research, hamper academic freedom and hamper our independence. Even worse, we are about to be asked to strip out of this bill a key protection that was inserted into it after the coalition moved an amendment that the Greens supported in the Senate.

This bill has a very wide scope. It catches research that is being conducted in connection with a list known as the defence and strategic goods list. It can be equipment, the nature of the research or the people with whom one is coming into contact that can potentially overlap with this list. This list has an index of 79 pages and is in itself a 380-page technical document. If your research overlaps with something on that list, you are caught by the bill. If that is the case, it is not simply that there are a few hoops you have to jump through. If your research is caught by this bill and you do not comply with the provisions of it, you face criminal penalties as a researcher in this country. You have to ask for a permit to have your research published.

It also affects the basic conduct of research itself—your communications with people in another country. It will affect you when people come from another country to visit you. If you collaborate with an institute in Asia, you will be caught by this. You are subject to criminal penalties if you do not comply with the requirements of this bill, which themselves are only understandable by reference to a 380-page technical document.

This is not some abstract point; this is going to affect research done all the time by people in this country. As the University of Sydney told the Senate, it will affect it will affect quantum physics research. One academic there said that this would be an onerous regulatory regime requiring allocation of the significant resources to monitoring and managing the requirements that would otherwise be devoted to research. He said:

Were this legislation in place at the time I was brought to Australia from the US to build a research effort in this area, I may not have come, given the potential difficulties it could cause.

This is not someone who is doing research, writing a blueprint for some weapon that they are about to send to another country; they are doing research in quantum physics. The government may say that this will not affect basic research, that it is only research done with an intended purpose. Having spent some time talking to researchers over many years, I know that so much of the research is done now in connection with a potential application and inventions like Wi-Fi come when you are researching something completely different, as CSIRO knows all too well. It is absolutely correct when the University of Sydney says that this will affect potentially melanoma research. One research says:

There would be a chilling effect on participation by foreigners in our biomedical research, and the probability that important research in human biology and medicine might never be done. There would be increased compliance costs, with resulting reduced effectiveness of Commonwealth research infrastructure funding, reduced effectiveness of private funding to independent research institutes, and slowing of research. In the health research sector it has been robustly demonstrated that investment saves lives and increases welfare, so a reduction of investment through increased costs, or non-approval of research, will have a real and potentially quantifiable cost in lives and human welfare.

And they tell us it will have an effect with respect to infectious diseases. Not only is that a laborious process of identifying whether or not you are caught by this act by reference to another document— (Extension of time granted)

Stuart Robert (Fadden, Liberal Party, Shadow Minister for Defence Science, Technology and Personnel) Share this | Link to this | Hansard source

Keep it short.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

I am told to keep it short by the shadow minister, who is asking me to not defend the amendment moved by the coalition in the Senate. This is incredibly important for the conduct of academics in Australia and their research. One of their main criticisms has been that this has been rushed through, some say to coincide with the future visit from the US Secretary of State. There has been complaint after complaint about how quickly this process has been pushed through this parliament, and the fact that it took the Greens in the Senate to get the two-year review that some on the government benches are relying on to now support the passage of the bill suggests that this bill had problems in it from the start. Of course, the government to their credit have acknowledged that there are problems and worked to find some solutions, but those solutions have not been found because we now still have at the last minute, just today, Universities Australia saying to this place that the Senate's decision—that is, the passage of the coalition and Greens amendment:

… to match the US exclusion from fundamental research is an important step in ensuring a level playing field for export controls. Universities Australia calls upon the House of Representatives to give this serious consideration, as the Senate has done.

The Society of University Lawyers tells us that there is a real likelihood that the bill as currently drafted may do more harm than the risks it seeks to address, and they seek the support of this place for changes. The National Tertiary Education Union says they are alarmed at the inclusion of an amendment which, if passed into law, would create a criminal offence for the publication of certain material related to dual use technologies. So here we have being rushed through a bill in which, at the last minute, the universities and the academics are pleading with us to include some basic protection for research that is not intended to be caught by this. I think everyone in this House would agree that national security is important and that there should be restrictions, as suggested in the Senate, on providing a blueprint for some kind of weapon to someone who is an enemy of this country. If we are really concerned about that, perhaps we should be looking at what we are doing with our potentially deadly uranium and where, after second and third countries, that might find its way and into whose hands.

If it was simply a bill about dealing with that, that would be one thing, but it is not about dealing with that. The government and the opposition know it, which is why there has been a scramble to find a solution. What we know, because the experts and the people who are going to be affected by this are telling us very clearly, is that if this passes we have not fixed the problem. In fact, we are now introducing a potentially chilling regime into research in Australia and we are doing it quickly when there is absolutely no need to do it quickly and there is every need to give our researchers more time so that we can come up with a solution.

I hear the government's point that the amendment which provides the exemption is broadly drafted. The Greens moved a different kind of amendment in the Senate which was unsuccessful but which provided a defence for academics, rather than an exemption, a defence they were able to rely on to avoid prosecution. That was unsuccessful, but in the absence of that defence we need this amendment to remain and we need this protection to apply. Otherwise we are about, for the first time, to introduce criminal sanctions on our researchers at a time when they are telling us, 'You do this and it will affect the biomedical research that we do, it will affect the research into physics that we do, it will affect the research into infectious diseases that we do.' It is up to us in this place to listen to them and to heed the last minute plea of Universities Australia that we do what the Senate do—that is, maintain Australia's independence and maintain the freedom of our researchers to conduct their own research without fear that they may end up in jail.

Robert Oakeshott (Lyne, Independent) Share this | Link to this | Hansard source

I support the words of the member for Melbourne. I ask, hoping it is the view of colleagues around me as well, for reconsideration by both the major parties in this chamber of supporting what looked to be an eminently sensible amendment, approved by the Senate yesterday, moved by Senator Johnston of the Liberal Party and supported by the Greens. But here in this chamber today, 24 hours later, we have the Liberal and National parties opposing the motion they themselves successfully moved in the Senate. I ask this chamber: what on earth has happened in the last 24 hours; who has talked to whom to force that change of position?

I would ask everyone to look at proposed section 9A. Od section 9A. On paper, you will see a sensible amendment that asks for nothing more than the same standards of access and exemptions for Australian researchers that apply to US researchers. What on earth is this chamber doing voting against equity for Australian researchers with their US counterparts? Why on earth, in our sovereign interests, would we be voting against that? That is what I ask both the Minister for Defence and the shadow minister for defence. I also invite the minister for education and the shadow minister for education to come down and participate in this debate to explain why bipartisanship on military affairs matters more than bipartisanship on education affairs in Australia's sovereign interests.

We are two days into the so-called Asian century. I have heard lots of talk about the importance of education and how partnerships with neighbouring countries in the Asia-Pacific are going to matter and will grow over time. This bill is the first action that we as a parliament have taken following the release of Ken Henry's work on Australia in the Asian century. This is a step backwards for those partnerships with other countries rather than a step forward based on the principles of open science and research, and partnerships and collaborations with neighbouring countries and institutions. This is the handing-over of command and control of the research sector to the minister at the table, the Minister for Defence—and, whilst I am sure that is not the intent, that is not the way it is being delivered in the UK and it is not the way it is being delivered in the US. I accept the need and the want for global agreements in this area, but we have handed over delivery of this to the Defence portfolio and saying Australian research in Australian education institutions is secondary to the wants and needs of Defence. We are entering McCarthyist territory if we accept that. It is extraordinary to see a minister being allowed to do that in a cabinet that says education matters.

I think it is telling that, in the last 24 hours, we have gone from seeing the Liberal Party, with the Greens, get this proposed section 9A approved in the Senate yesterday, for good and sensible reasons, to seeing the Liberal and National parties opposing it in this House today. I ask: what is going on? And I do not like what I think is the answer. It is of great concern who has got to whom over the last 24 hours.

I also put to bed the notion that this is just some University of Sydney issue, which is the pitch that has been made to me and others. I have emails from the Australian National University. I have emails from the University of Technology, Sydney. Universities Australia has today come out and said that what happened in the Senate last night was sensible and something that deserved this chamber's support. (Extension of time granted)I cannot understand why anyone would argue against what was approved in the Senate last night. If it is so broadly drafted that it means nothing, then so what? Leave it in.

The fact that we have a minister approving 26 amendments but only fighting one and we have a Liberal Party approving this in the Senate yesterday but now going against it in the Reps says that there is a dirty little story about section 9A that needs to be told by both parties. It is at the expense of the education sector in Australia. I ask both parties to stand up and explain exactly what the problem is with this proposed section 9A. It is in defence of open research and science.

I also want to raise the issue of proposed section 14A, which is the second issue of critical concern that remains in this bill and which was a late government amendment. I was not going to make an issue of that if coalition support for section 9A in the Senate was maintained in this House, but it looks like there is bipartisanship on removing 9A. That brings 14A into play, and what that says is quite extraordinary for the research sector in Australian education today. It says that, if any researcher—even those with good intentions and working in good faith—publishes what has to date been open scientific research for the public good, it is a criminal offence.

The McCarthyist intent may be honourable, but the delivery through this legislation is dangerous. It is jeopardising our commitment to a research sector in Australia that I would have thought is important to all of us in the many fields that we deal with in this chamber, from food and fibre production all the way through to the medical and health sciences. The kinds of science that are covered by this Defence Trade Controls Bill are innovation advancing public health, improving agriculture, mining and manufacturing, and supporting Australia's civilian innovation sector. That is because this research sometimes also has military applications. Open scientific research is, however, low or no risk in respect of military applications. For that reason, why on earth are we leaving that exposed, and why on earth are we therefore including a criminal offence for a researcher in that space?

I express my deepest want: for the minister, the shadow minister and the carriers of the education portfolios on both sides to have another look at this. Those two areas in particular should not pass in the form that they are in. We should be supporting what the Liberal Party put up in the Senate yesterday and had the potential to get through this chamber today. I find it extraordinary that they have chosen for some reason today to fold their cards. I will not. I will oppose this on behalf of the education sector of Australia, and I ask the shadow minister at the table to talk to his colleagues. They might get a win if they have another look at this.

Craig Thomson (Dobell, Independent) Share this | Link to this | Hansard source

I find it absolutely extraordinary that the Labor Party, in weighing up the choice between military and education interests, are putting military interests in front of educational interests. It is absolutely extraordinary that we find this situation—particularly from the government, who have prided themselves on the many good things that they have done in terms of education. A choice has been put there, a choice that they did not need to make—by adopting clause 9A they would get the outcome that they need—but they have decided to make a choice between education and military interests, and they have gone with military interests. I find that, on one hand, extraordinary.

I find it equally mind-blowing that the coalition can see the problems in the Defence Trade Controls Bill 2011 and, quite correctly, moved an amendment less than 24 hours ago, but 24 hours later they are actually going to oppose their own amendment here in this place. What is happening in this place? It is unprecedented that we are seeing this type of approach in relation to what should be bipartisan interests in making sure that Australia is a smart country, that we are giving every opportunity for researchers, rather than curtailing it.

What I think is most disappointing in this legislation is that, if this amendment is not passed, if we disallow what the Senate quite rightly put last night, we are going to end up with Australian researchers being treated in an inferior way to US researchers. I thought that in this country we were well beyond dipping the hat in colonial style to our partners, that we were a more mature country than that, that we had reached the stage where we could actually have partnerships on an equal footing, but apparently that is not the case. Apparently equal footing is something that the two major parties are going to oppose here in a bipartisan approach. That is absolutely extraordinary.

This legislation is complex, but one thing that almost every speaker in the Senate from both the Labor side and the coalition side complained about in this debate was that there was not enough consultation, that the matters had been rushed and that there were problems in relation to a whole range of proposals with this legislation, which is why the minister is here today making and supporting 26 amendments. But one of the most crucial amendments, an amendment that would have seen Australian researchers treated in the same way as those in the US, for some reason is being opposed.

In this country, under this regime, we are taking a totally different approach to that of the US or that of the UK. We are rushing through legislation. The great hope that both parties have said we have here—and I commend the contribution of the member for Reid, except that he is accepting that corrections can be made to this legislation in the two-year period afterwards. The history of this legislation is that it has been through Senate committees, where there were complaints about the way in which consultation had taken place—that it had been rushed. We are having it rushed into the Senate. We are having it rushed through the House of Representatives. For what reason? To disadvantage Australian researchers.

Surely, in this piece of legislation, the benefit of the doubt must go to the researchers. This amendment put forward by the coalition is in almost identical terms to that in the United States, so, if it were passed, we would see Australian researchers having the same provisions, the same issues, that they have in the United States. Instead, what we are doing is making researchers fear criminal sanctions, with up to 10 years in jail. The way both parties have approached this piece of legislation is a disgrace, and it does no credit to this House that we are going to end up where we are going to end up today.

Tony Windsor (New England, Independent) Share this | Link to this | Hansard source

I join with the other crossbenchers to express some concern about the rush that is occurring within this building today. I will make a suggestion to the minister in a minute and maybe the shadow minister will be interested to hear it as well. This is one of the few occasions in my parliamentary career in which I have seen this sort of activity occur. I saw it when the US free trade agreement was being debated. At that time, there were a whole range of side deals for a whole range of reasons outside the necessary interests of the Australian community. I reflected at that time that there were very real concerns about the way in which that particular deal was put together. I appreciate all the pressures in terms of the diplomacy et cetera and America being a friend—all of those things. But I think that if people were to go back and have a close look at the US free trade agreement and the implications that it has had and will have in certain areas—particularly in terms of pharmaceuticals and other products—as the years unwind, they would see reasons to slow this process down to give people a real look at what is actually going on here.

What has happened in the last 24 hours? I do not want to reiterate what previous speakers have said, but something has happened. The minister and particularly the shadow minister need to explain what has happened. What happened such that the position of the Liberal Party now is different to what it was 24 hours ago? People need to understand that.

I would urge the minister to take my next point on board. I suggest, Minister, that it might be appropriate to adjourn this debate and let some fresh air drift around on this issue so that people can better get their heads around it. The bill can be reintroduced, if required, when parliament resumes in a few weeks time. That would give people in the research industry, such as those at universities, more time. These people are genuinely concerned. I have had any number of emails, some particularly related to agriculture and agricultural research, an area that none of would think would be implicated in terms of relationships with the United States or defence—and during the striking of some of the free trade agreements over time most of us did not think that they would be implicated, either. The concerns that some people may have had were brushed aside, with people saying, 'No, that is not the intent.' But as time has passed it has become quite clear what the intent was.

The community needs to know how intentions have changed in the last 24 hours, and particularly how the positions that the Liberal Party, the National Party and the Greens took in the Senate have changed compared to what is happening now. I suggest to the minister and to the government that it may be in their interests and, more importantly, the interests of this debate that the debate be adjourned until we return in a couple of weeks time for the final week of parliament. I would like the minister to explain—and perhaps the shadow minister can as well—why that cannot happen. Why can't there be an adjournment of this debate until the parliament returns?

Stephen Smith (Perth, Australian Labor Party, Deputy Leader of the House) Share this | Link to this | Hansard source

Let me go through some of the technical reasons why it does not make sense for this House to do anything other than to support the government's recommendation, which is to not adopt amendment (9) contained in the message from the Senate to insert a new section, proposed section 9A. Then I will respond to some of the comments from the floor.

It is worth bearing in mind, as I said in general terms in my earlier remarks, that the government, in response to the preliminary report from the Senate committee, asked Mr Peacock, the Chief Defence Scientist and the Chief Scientist to engage in consultations and a roundtable. Every one of the recommendations made at that roundtable have been adopted by the government, presented to the Senate and agreed to by the Senate. They are supported by the government on the floor of the chamber today. The suggestion that this has all been done in a great rush is, frankly, hyperbole and overegging it.

The Parliamentary Joint Standing Committee on Treaties recommended more than two years ago that legislation be brought into this parliament ratifying the treaty between the United States and Australia for trade in defence. Everyone at the time recognised that that would open up enormous possibilities for Australian industry, Australian defence industry and Australian education and research. It would open up enormous possibilities, because it means that you would not have to get individual export approval for every access that an Australian company might get to a US foreign material sale so far as defence is concerned.

I know that members have been focusing on the narrow issue of national security considerations in defence export areas, both in terms of the Australian context and in terms of the United States context. But let us just pause and remember for one moment that this treaty has been around for four or five years. The Parliamentary Joint Standing Committee on Treaties recommended ratification. The United States Senate effected ratification nearly two years ago to this day. A draft bill was put out for consultation with interested parties as early as May of 2011. When the preliminary report from the Senate came down earlier this year, I asked Mr Peacock, the Chief Defence Scientist and the Chief Scientist, Mr Chubb, to engage in consultations to address whatever reasonable concerns were expressed at that stage by the university and the research sector. Ever one of the recommendations adopted by the roundtable that was chaired by Professor Chubb, the Chief Scientist who used to be the well-respected vice-chancellor at ANU and who from memory used to chair the G8, has been adopted by the Senate and recommended by me for adoption by the House today.

Indeed, on 11 October, Universities Australia put out a press release saying how pleased they were with the fact that all of those things had been effected. Proposed amendment (9) in the message from the Senate, which I am saying that we should not adopt, was not part of these proposals.

It is a new proposal, found in the Senate. It is not part of these proposals.

On 11 October, Universities Australia, priding itself as the peak body representing Australia's 39 universities, said that they strongly supported those recommendations, all of which have been adopted in the Senate and recommended for adoption here. Today, and this is not said critically, they put out a press release saying that the House should give 'serious consideration, as the Senate has done,' to the amendment in question. I have done that and I have come to the conclusion that to do that would undermine, fundamentally, the basic structure of the bill and would not meet the standards required to ratify the treaty. Also, it goes further than is required to meet the balance between the national security and defence export requirements and freedom of academic research and freedom of research.

The adoption of amendment (9) would fundamentally undermine the fabric of the legislation. Today, Universities Australia said that we should give serious consideration to this issue and that:

The principle that Australian researchers are not disadvantaged compared to other countries will be embedded and refined through the two year pilot and transition period.

One of the strengths of the amendments circulated by the government, adopted by the Senate and presented here, is that the transition phase will allow all of those concerns to be observed, monitored and refined, if and when required. We have a transition period of two years, we have a steering group of industry, research and government representatives, chaired by the Chief Scientist. This group will consider the effect of the controls to ensure that they do strike the appropriate balance, as I have outlined: the balance between meeting our international obligations and academic and research freedom. There will be pilots during the transition period. Those assessments will come back to the minister—whether it is me; it will be the minister of the day. And, importantly, the bill does not include any domestic controls. We are talking here about export, so there is no imposition on research conducted and effected in Australia that is for domestic purposes.

Members have made the point that we should adopt this because amendment (9), the proposed section 9A, puts us on a comparable basis with the United States. That fails to appreciate a fundamental difference between the way in which the United States approaches these matters and the way in which we do. The effect of the amendment, in my view, would be that anyone who is claiming to be conducting fundamental research in Australia would be exempt from the provisions of the bill. That is a far broader effect than the US exemption, which is for fundamental research, but which only applies to research outputs. Research inputs are subject to US export controls. There is no US exception that would allow controlled technology to be exported from the US for fundamental research without US government authorisation. So, to say that this puts us on the same footing as US scientists is wrong, because they apply a fundamentally different approach. What we are doing is using our own law, our own approach and our own system to strike the appropriate balance between effecting the international obligation in ratifying the treaty and the national security requirements of defence exports. At the same time we are balancing that with academic and research freedom. If we have that balance wrong we have the two-year transition to make sure that that can be monitored carefully—pilot programs and a government-industry-academic-research steering group—to look at the effect of these measures in practice.

The bald assertion that somehow on the one hand we are putting ourselves in an inferior position to United States scientists, but that on the other hand we should adopt precisely their measures, misunderstands the fundamentally different nature of the way in which we approach these issues as a jurisdiction or a country, and the way in which the United States does.

To summarise those issues, the notion that we have been seized of these issues at six o'clock tonight is just wrong. This is a treaty proposal that has been floating around for years. The first draft bill emerged in the first half of 2011. There have been two Senate committee inquiries, a preliminary report and a subsequent one. There have been consultations conducted by Mr Peacock, the Chief Defence Scientist and the Chief Scientist, and the bringing forward of recommendations, all of which are recommended for adoption. The amendment in the message from the Senate, which I am recommending to the House we reject, was not part of those proposals. It fails from a fundamental mistaken assumption that the US system is the same as ours. It is not.

The measures before the House, on my recommendation, strike the appropriate balance. If for some reason in practice that is shown to be wrong you have a two-year monitoring pilot program with in-practice capacity to make whatever changes at the margins are required.

The essential and simple choice here is that we either effect legislation of sufficient standard to ratify the treaty, or we do not. To include amendment (9) would diminish the standard of the legislation required to meet the international obligation to ratify the treaty, and on that basis the House should reject it.

Stuart Robert (Fadden, Liberal Party, Shadow Minister for Defence Science, Technology and Personnel) Share this | Link to this | Hansard source

Let me provide some brief comments back to the members of the cross benches. I thank them for their contributions and I understand some of their concerns—and from where they are sitting, some could say that things seem a little odd.

Let me refute the issue that there is some grubby deal between the government and the opposition. I think question time would leave the nation in no doubt that it is very difficult for the government and the opposition to agree on some very large issues, and the idea that we could do some backroom deal is, I think, a little silly in the extreme. However, there is no question and there is no doubt that the government and the opposition share an enormous bipartisanship when it comes to defence, and no-one can argue that I have shown anything other than bipartisanship in the key areas of defensive matters, including combat operations, troop dispositions, the welfare of our fighting men and women and, of course, our alliance structures.

The amendment last night in the Senate was moved in good faith. The government raised a range of concerns they believed were legitimate. They raised them forcefully, and they raised them in the spirit of bipartisanship. On the basis of that I was prepared to give the government the benefit of the doubt. Having dealt with this government now for four years as part of the shadow defence team, I have worked out when the government is dealing with issues that they truly believe are significant in the national interest and when they are dealing with issues that suit political interests. I must say, the government expressed this in very clear national interest terms—clear enough for us to say: 'We understand it. We respect your position. We will provide a degree of benefit of the doubt.' That degree, of course, is encompassed within a two-year 'cooling off period', for want of a better expression. That gives the parliament the opportunity within that space to assess, with very clear eyes, what—if any—impact there is.

Be under no doubt that if the research sector or the university is being fundamentally impacted the coalition will champion their cause vigorously. But right now the key issue in terms of defence and the trade treaty, which has been around for a long time—in the absence of overwhelming support or overwhelming evidence that the university or research sectors will be harmed—is to provide the government the support they need, and that is what I will be doing.

Robert Oakeshott (Lyne, Independent) Share this | Link to this | Hansard source

In what is hopefully a final response, I will say that I do not in any way, in speaking in this debate, question bipartisanship in defence matters. But I do place the charge before the House that the standard of bipartisanship in defence is now bipartisanship in creating criminal sanctions for researchers in Australian universities. That is the bipartisanship the crossbenchers today have spoken about that is of concern. It is not a matter of whether we support a defence treaty with the UN. I love Ambassador Bleich. I have been to America.

Stuart Robert (Fadden, Liberal Party, Shadow Minister for Defence Science, Technology and Personnel) Share this | Link to this | Hansard source

You love him?

Robert Oakeshott (Lyne, Independent) Share this | Link to this | Hansard source

Well, he's great company. I do not question anything about Australia's relationship with the US. I actually think we can deliver the treaty agreements in a way, through this chamber, that has unanimous support in the lower house and the upper house as a really strong message from the Australian parliament. But we do not need, in defence terms, collateral damage. And the collateral damage of this bill is researchers at Australian institutions who are now, under law, potentially—under 14A—to face criminal charges if, even in good faith, they publicise their research in the way they have in the past. They have to now meet a standard of approval with the Minister for Defence, which is an extraordinary takeover of the education portfolio in the research field. That is the concern before the House today. It is not about whether we have a treaty arrangement with the US or about all that we want to deliver for the impending visit of secretaries of state—or any of the other reasons to enhance our relationship with the US. None of that is in question, but there is a charge before the House today that remains unanswered: that researchers are getting a raw deal through this legislation.

There is now a criminal offence that has been written into law, and I do not accept the minister's argument that Australian researchers, in a highly competitive area—an area we want to grow in this country—now face a lesser standard in their ability to do open research, collaborate, and have partnerships with other institutions and other researchers compared with researchers in the US and the UK, who are also meeting these similar defence treaty agreements. It is not a matter of whether we do it in defence; it is how we do it, and how we do it without impacting open scientific research and fundamental research in Australia today.

In the responses I just heard from both the minister and the shadow minister, I heard the word 'fundamental' about half a dozen times. And in a world where the Macquarie Dictionary seems to define all we do, I heard that we are fundamentally undermining the fabric of the legislation. I heard that Australia is fundamentally different in the way we do research compared with the US, and that the crossbenchers fundamentally misunderstand what is really going on here in this legislation. I also heard that the only reason so far that there has been a massive change of position from the coalition is that somehow there is an acceptance now that this would fundamentally impact on defence and military issues for Australia.

I put the words 'fundamental research' on the table. That is exactly what you are knocking out: fundamental research that was written into section 9A by the coalition, to their credit, in the Senate last night, for all the right reasons. And now, for some reason, they have backed away from it. And now, of all the 27 amendments before this chamber, this is the one the minister rejects. I put it to this House again: why? And the 'why' needs to be answered in full, in detail. I will not support any attack on Australian universities that this looks to be doing in its current form.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

Just very briefly, on this question that was posed very well by the member for New England—why can't we wait another month?—yes, there have been inquiries and round tables. But the criminal sanction that the universities and the academics are most anxious about, with very good cause, was circulated by the government as an amendment only after the Senate inquiry reported and after the round table. It is for that reason that there is, in effect, a last-minute amendment to a bill and an idea that has been out there for a period of time and that is causing great angst amongst our research community. If the issues were resolved we would not be having last-minute pleas from, on one hand, Universities Australia and, on the other hand, the National Tertiary Education Union on behalf of producers of research and those defending the rights of academics to freedom and independence for further consideration.

It is manifestly clear that this recent amendment imposing a sanction is not one that has the accord of key people in the sector. The Asian Century does not appear to have gotten off to a good first week. If it is the case that the United States is able to dictate what research we conduct and with whom, and to place a fundamental break on the work that is being conducted that is going to set this country up for the 21st century, this is a very worrying sign of things to come.

Craig Thomson (Dobell, Independent) Share this | Link to this | Hansard source

Can I say in response to what the minister has said that, if he is right that we have misunderstood the legislation, if he is right that the university sector has misunderstood the legislation, if he is right that the university lawyers have misunderstood the legislation, if he is right that the law firm that the universities got to do their work on have misunderstood the legislation, if he is right that the education union has misunderstood the legislation, if he is right that the coalition and Greens senators last night misunderstood the legislation, then surely he has made the case that the member for New England set out—that we should not be dealing with this legislation now, in such haste, until all of those parties understand the legislation, understand the intent, so that we can go forward.

The minister's response has clearly made the case that this legislation is contested, that people have different views about, and in his view is misunderstood, there is a very easy solution to make sure that this legislation is fully understood by all of those groups that he says misunderstand it: to not push it through tonight, to take up the offer that the member for New England put in good faith—and that is to reintroduce this legislation the next time we sit here in Canberra and spend that time making sure we understand the legislation, those groups understand the legislation and the industry understands the legislation; because there can only be two options here: either the legislation is in such a form that it is easily misunderstood or in fact the minister is wrong and it does have the effect that the crossbenchers have spoken about today, that it is deleterious to the research sector. It can only be one of those two positions, and surely, for such an important issue, it is worth making sure we get it right. This is something that should not be rushed through today. If we do this we are making a grave mistake and we need to be making sure that higher education is given the courtesy, the respect and the emphasis and priority that it deserves.

Dick Adams (Lyons, Australian Labor Party) Share this | Link to this | Hansard source

The question is that amendment (9) be disagreed to. There being more than one voice calling for a division, in accordance with standing order 133 the division is deferred until after 8 pm.

Debate adjourned.