David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Hansard source

Thank you, Senator Johnston. I will take on the task of trying to persuade you because it is the government's view that the amendments proposed by you would be, to use your phraseology, 'fatal'. Having taken on this noble task of trying to change your mind, let me get to it.

Firstly, you quoted from the US Export Administration Regulations, both before question time commenced and now, which has given us an opportunity to look at that point. Export administration regulation 734.3 B3(2) states that in the US technology will not be controlled if it arises during or results from fundamental research. This provision was then used to support the opposition amendment (1) proposition to insert section 9A. We say that the quoted EAR and the amendments that flow from that in fact support the government's position, because, unlike the quoted EAR, the Australian legislation will not control technology that arises during or results from fundamental research at all. This is a critical point that makes us different from the regulatory regimes that you have looked at elsewhere. That is why no fundamental research exemption is necessary and, further, we say it would create a loophole in the bill.

To reiterate, the US does not exclude fundamental research from the requirement to obtain a permit for the export of controlled technology. It is simply not correct to suggest that universities and researchers in the United States do not have to comply with US export controls. US government advice on this matter is conclusive. However, to ensure that there is transparency in the assessment that this bill does not disadvantage Australian researchers, the government, as already indicated to you and to the Australian Greens, will support the Greens' amendment to the functions of the steering group established for the transition period—again, I think we have covered that before we were rudely interrupted by question time—so that the group's functions include whether this act, the regulations, and the implementation arrangements are not more restrictive than the United States exports control regulations in relation to university activities That would build into the legislation an accountability mechanism that addresses the concerns raised by a few members of the university and research sectors and, indeed, the concerns that you have articulated here in the Senate.

The fact is your proposed amendment would carve out an exemption to all the provisions in the bill to any person claiming to be acting as a researcher. If passed, such an amendment would undermine all of the strengthened export controls, the very purpose for which this bill is designed to create. It will mean that Australia will not meet the commitments made by this government, and indeed by the Howard government, under the Wassenaar agreement. It will also mean that Australia's defence export control arrangements will not be strengthened to the threshold required for ratification of the defence trade treaty with the United States and that the benefits from the treaty will not be forthcoming for Australia's defence industry.

Prior to question time, I did answer in a little detail some of your concerns. I want to briefly look at your proposed clause 9A and take you point by point through the government's views of that. Your proposed clause 9A(a):

… information in the public domain;

I reiterate, information in the public domain is already excluded from the proposed controls. Your 9A(b):

… information that has been, or is intended to be, published …

We say that information that has been published is in the public domain and is already excluded from the proposed controls. The legislation does not regulate information intended to be published unless the publication will include control information. Your 9A(c):

… fundamental research … basic and applied research ... where the … information is ordinarily published …

The government's position is that basic scientific research is already excluded from the proposed controls. The legislation does not control the conduct of research. It is not appropriate to exempt applied research as this can involve the transfer of controlled technology overseas and it is only in this circumstance that a permit would be required to enable the government to assess the risk in supplying the technology overseas. Your proposed subclause 9A(d):

… educational information or instruction provided … by a higher education provider;

The government asserts that all education and instruction provided by a higher education provider in Australia will not be controlled. It is anticipated that almost all educational information and instruction materials would be considered in the public domain and hence not controlled. Highly specialised courses containing controlled technology may be controlled if sent overseas. Finally, your proposed subclause 9A(e):

… information that is the minimum necessary information for patent applications.

The government assert, again, that information supplied to IP Australia for a patent will not be controlled. I will provide a little further detail regarding the removal of the publishing offence. The legislation does not seek to regulate publications and it does not require publications to be reviewed by the government. The offence provision will only be relevant to researchers if their intended publication communicates specific controlled technology that is listed in the DSGL. Once DSGL technology is published in the public domain, the public domain exemption could be used and the DSGL controls would no longer apply. This would have the effect of decontrolling any published information.

It does not make sense to require an Australian researcher to apply for a permit to supply controlled information to a researcher overseas but then allow the same Australian researcher to publish the same controlled information to the public at large. The publishing offence will have an exemption to allow publication of controlled information in rare circumstances when the minister believes that the public interest to publish the controlled information outweighs the need to protect the security of that information. We envisage that this will be a rarely used mechanism and in circumstances perhaps similar to the H5N1 situation.

You will recall, Senator Johnston, that the H5N1 influenza was a fast mutating and highly pathogenic strain of the influenza virus, referred to in common parlance as the bird flu. Its rapid spread across Asia, Europe and parts of Africa sparked fears of a global pandemic. Despite the H5N1 research being controlled by US technology controls, the US decided to allow the public release of H5N1 research in early 2012 in order to facilitate international pandemic preparedness efforts. In making this one-off decision, the deciding body noted that the research did not appear to enable direct misuse in ways that could endanger public health or national security.

All of this will be tested during the pilot program that will be conducted during the transition period and overseen by the Strengthened Export Controls Steering Group. Senator Johnston, the concerns you have outlined are all proper and legitimate concerns, but they have been comprehended by the legislative regime and the framework we are proposing. We are able to demonstrate that each of your concerns is either dealt with elsewhere or something that is not required.