David Johnston (WA, Liberal Party, Shadow Minister for Defence) Share this | Hansard source

I would like to speak further to the amendment, if I may. By way of explanation, I was speaking just prior to question time. To reiterate a little, just so we all know where we are at, I was quoting directly from the US Export Administration Regulation. I do need to say that having used the exact words of the legislation in the amendment, I acknowledge that the department, and therefore the government, is most concerned about the use of the term 'fundamental research'.

Having said that, I want to be persuaded as to why you think, in the face of what I will deal with in a minute regarding United States legislation, we should be more restrictive than they are. This is complex and I think everybody needs to come to this debate with an open mind, but having read those clauses out—and tell me if there is something I am missing here—I do not for one second want to see our research situation be any less competitive or be more restricted by this legislation than would be the case in the United States as I have set out using the words in their legislation.

A number of people in the research institutions—and here I have taken from Universities Australia's submissions—have said that adopting this amendment brings Australia's system of export control into alignment with the laws in place in the United States pertaining to university research. Complementary resolutions would ensure implementation proceeds transparently in accordance with the transition arrangements through the round table process and endorsed by the committee. That is their words. That is what they see as fundamental. I take it the Greens are probably going to support the opposition in this amendment. That is why I think, Minister, it is really important if you see it as fatal, then let us put it on the record now, let us have the discussion.

I want to also mention that in looking at the Congressional Record—and I had a little bit of time today to go through some of these elements—there is quite a detailed assessment of how the treaty should work and what compliance threshold and gates there are to it. At S7722 the Congress specifies that:

… the President shall certify to Congress that the Government of Australia has—

(A) enacted legislation to strengthen generally its controls over defence and dual-use goods, including controls over intangible transfers of controlled technology and brokering of controlled goods, technology, and services, and setting forth:

(i) the criteria for entry into the Australian Community …

(ii) the record-keeping …

…   …   …

(iv) the requirements for Exports and Transfers of United States Defense Articles outside the Approved Community—

and so on. I am pretty comfortable with all of those threshold/gate type issues for us to comply with what the congress has intended. I do not think there are any problems there. All I am saying is that their regime appears to be reflective of the exact terminology we are using in this amendment.

I will finish this part of the debate by trying to deal with some of the material that Australian researchers have given me. They say to me:

US researchers in accredited higher education institutions enjoy broad exclusions from export control under the relevant Export Administration Regulation (EAR) and International Traffic in Arms Regulations (ITAR), for fundamental (basic and applied) research in science and engineering that is ordinarily published and shared with the scientific community.

And here is that expression again that you see in the amendment. They continue:

Our Defence department has taken a much narrower view of what can be left out of their proposed regulatory net. They only concede exemptions that are already written into the DSGL—

the Defence and strategic goods list—

items in the public domain and the results of basic scientific research.

This is the nub of the issue that we are seeking to ventilate. They say:

The Australian government’s investment in research, like the private sector’s, is largely driven toward achieving outcomes for Australia’s national priorities to support economic prosperity, health and innovation. As a result, the great majority of Australian research is pursued with some application in mind. The narrow definition of basic research in the DSGL thus captures a large swathe of research activities where there is low-risk and arguably no-risk for the transfer of information that would lead to harm and where the risk can be managed more appropriately and effectively at the institutional level with benefit of the disciplinary expertise in the university and in accordance with established academic codes of practice.

The paper goes on to say:

As the National Tertiary Education Union has said—

They also have been talking to opposition senators—

in its letters to members of parliament recently:

“We are dismayed that the Government would seek to legislate such a radical reform without completing a regulatory impact assessment, or consulting with those likely to be affected by the change. The implications of this amendment must be thought through carefully before it is passed, and not left to be considered after the legislation has been formalised.”

I am forced to say that an awful lot of material in this bill is left to regulations which are yet undrafted. There are no regulations but we refer to them constantly, and you will see that in further amendments and in further matters. It troubles me that we are doing this important legislation in this way. In other words, we are flying blind.

The researchers go on to say:

In the US and the UK, and in other advanced western economies, export control over dual-use technologies is not entrusted to defence departments; in the US it is the Department of Commerce and the Department of State, in the UK the Department of Trade and Innovation.

These are the departments that have oversight and regulatory power.

Importantly, in the US and UK we see that open academic research is explicitly protected from the type of restrictions contained in our Bill. The introduction of export controls in the US and the UK was also the subject of considerable public debate prior to their passage.

For example, in the UK, the Baroness Miller of Hendon spoke eloquently in the House of Lords when export controls on intangibles relating to controlled technology were introduced in the UK.

She said:

“The extension of the control of export of goods to the control of intangibles—the control of thoughts and ideas—is a radical step, unheard of in a democracy. It has serious constitutional implications. Goods are exported if they are physically moved out of the country. It is physically impossible to control ideas. But that is what the Government are trying to do. By virtue of Clause 2(2)(c), they are even attempting to control the exchange of ideas within the United Kingdom. It is for that reason that a solid body of academia is totally opposed to some of the Government's proposed provisions

I think we are in a very similar situation here—

which are inappropriate in a country where universities have been centres of learning, research and discovery for over 900 years.”

As a result of the baroness's speech, section 8 was inserted into the UK Export Control Act, seeking to protect certain freedoms for academics. I will revisit and recite section 8.

1. The Secretary of State may not make a control order which has the effect of prohibiting or regulating any of the following activities—

(a) the communication of information in the ordinary course of scientific research;

(b) the making of information generally available to the public; or

(c) the communication of information that is generally available to the public, unless the interference by the order in the freedom to carry on the activity in question is necessary (and no more than is necessary).

2: The question whether any such interference is necessary shall be determined by the Secretary of State by reference to the circumstances prevailing at the time the order is made and having considered the reasons for seeking to control the activity in question and the need to respect the freedom to carry on that activity.

This is where we are seeking to take the legislation, because I really believe that the two examples—the UK and the USA—are very good ones. Their regulatory regimes, given that they are bigger countries than we are, have bigger budgets than we do, and, may I say, have more established—and I do not want to denigrate any of our research institutions—institutions that have been doing technical research for a little longer than we have. If that is the regime that they have, all I am saying to you, Minister, is that I am happy to come with you but you need to convince me that we are on all fours. If it is a constitutional matter in the United States—amendment 1—then I do not think that is going to satisfy me, because I think that is the nature of their constitution. I think we can participate to that extent, but the wording of, particularly, 9A(c) in this amendment, which says, 'fundamental research, which is basic and applied research in science and engineering' et cetera, is directly on all fours with what is happening in the United States. I see no good reason why we should take a step back in this important area of public policy. I am happy to engage you further on this but I need to be convinced that you think that this is fatal to the thrust of the legislation.