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

The senator has correctly identified that this is an area of some debate, so I am keen to respond to some of the questions he raised of the government in his remarks. The US does not exclude fundamental research from the requirement to obtain a permit for the export of controlled technology. The US export controls are complex, and this issue needs to be compared very carefully. As I am sure you have heard across this debate, Senator Johnston, we are not comparing apples with apples. 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 export control arrangements span multiple agencies and multiple control lists. There are numerous circumstances in which an export approval is required and numerous sets of exceptions that may apply.

The fundamental research exception quoted in the proposed amendment relates only to dual use technology in the US and is an exception only for the outcomes of fundamental research. This type of exception does not apply in Australia because the bill does not contain any provisions that seek to regulate the outcomes of research. The US government has provided specific advice to Australia's Chief Scientist and indeed the Senate committee on this very important point. The US government, the authority on US export controls, has made the following points very clear. First, there is no exception that allows controlled technology to be exported out of the US for fundamental research without US government authorisation. In fact, with limited exception, export controlled technology used by foreign researchers or students while in the US requires government authorisation prior to its transfer. This goes further than the provisions in this bill, which do not apply domestic controls within Australia.

I add to that answer by saying that Australia has not legislated the same safeguards as the US for good reasons. These include that the bill does not propose the conduct of research and, as a consequence, such safeguards are not relevant. The US system is quite a different model and regulates a much broader range of circumstances than are proposed by this bill. For example, foreign students are required to obtain permits to access or use controlled technology during their studies in the United States. In response to the university sector, Defence sought advice from the US government's agencies with responsibility for US export controls on the regulation of the US university and research sectors: both the Department of State and the Department of Commerce. This advice, which was duly provided by Ambassador Bleich to the Chief Scientist, is both clear and authoritative. It includes the following statements:

In the United States, if a university wants to use specifically controlled equipment or data, they would need a license or other approval to transfer this technical data or allow access to the equipment to a foreign person. … Universities in the United States are not exempted from U.S. ITAR and dual-use export controls.

Unlike the US system, the provisions in the bill do not apply any controls to the conduct of research within Australia. This means that foreign students, for example, are free to work and study here without the need for permits.

Furthermore, the bill does not affect the ability of researchers to use controlled technology in the course of their research, collaborate with overseas researchers, share the results of their research or publish the findings of their research just because their research involves the use of a controlled technology. A permit is only required if the researcher needs to share specific information about the controlled technology to a person overseas. I will, with the consent of the Senate, go through one example in an attempt to demonstrate this point. The example is a mass spectrometer. A sophisticated high-end mass spectrometer is a relatively common piece of laboratory equipment. It can be used by researchers to analyse water quality or in mining operations to analyse oil compositions. It is also used for measuring uranium isotopes and is a critical piece of equipment for a nuclear weapons program. This is why it is subject to export controls. Under the proposed legislation, a researcher in Australia would be able to use a mass spectrometer in their laboratory without restriction, regardless of their nationality. That researcher would also be able to use that mass spectrometer during the course of international collaboration on their research—again without restriction.

The researcher could do their research, share the results of their research and indeed publish their results without any requirement to obtain a permit. A permit from Defence would only be required if that researcher were seeking to provide blueprints, design specifications or detailed instructions on how to use that mass spectrometer to a person overseas. It would be an offence to publish those blueprints, design specifications or detailed instructions in the public domain.

The proposed controls are not as restrictive as the complex package of US controls—that is what this government contends. We say they are appropriate for the Australian environment. They also take account of our participation in international arrangements, like the Wassenaar arrangement, to which Senator Johnston referred earlier, and so continue Australia's contribution to counterproliferation of sensitive technologies.