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

( There are a couple of problems we have here and I think we all need to go away after question time when other business comes before the chamber and just have a look at some of these things.

I am looking at a summary extract from the US Export Administration Regulations 15 Code of Federal Regulations 734, entitled 'Scope of the export administration regulation'. This was downloaded on 22 August 2012. Item 734.3 is entitled 'Items subject to the EAR'—that is, export administration regulations—and states:

(b) The following items are not subject to EAR:

…   …   …

(3) Publicly available technology and software, except software classified under ECCN 5D002 on the Commerce Control List, that:

(i) Are already published or will be published as described in 734.7 of this part;

(ii) Arise during, or result from, fundamental research, as described in 734.8 of this part—

underline 'fundamental research'—

(iii) Are educational, as described in 734.9 of this part;

(iv) Are included in certain patent applications, as described in 734.10 of this part.

When I turn over to the annotation, under the heading of 'Fundamental research', it states:

Paragraphs (b) through (d) of this section and 734.11 of this part provide specific rules that will be used to determine whether research in particular institutional contexts qualifies as “fundamental research”. The intent behind these rules is to identify as “fundamental research” basic and applied research in science and engineering, where the resulting information is ordinarily published and shared broadly within the scientific community. Such research can be distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary reasons or specific national security reasons as defined in 734.11(b) of this part.

You can see there is a similarity in what I am quoting from the US law to what this amendment says. So I am a little bit sceptical—this is complex—and I stand to be corrected if someone says this does not apply. But it goes on to say:

(b)   University based research

(1)   Research conducted by scientists, engineers, or students at a university normally will be considered fundamental research …

The American situation appears to me to embrace this very important amendment. This document goes on to deal with the public domain. It also relates to a further description of fundamental research. This is 120.11 under the heading 'Public domain'; it sets out what that means. I will put that on the record in the two minutes I have left. I will continue on with this, Minister, when we get an opportunity. So we can all stand down towards question time while I go through this process:

(a) Public domain means information which is published and which is generally accessible or available to the public:

(1) Through sales at newsstands and bookstores;

(2) Through subscriptions which are available without restriction to any individual who desires to obtain or purchase the published information;

(3) Through second class mailing privileges granted by the U.S. Government;

(4) At libraries open to the public or from which the public can obtain documents;

(5) Through patents available at any patent office;

(6) Through unlimited distribution at a conference, meeting, seminar, trade show or exhibition, generally accessible to the public, in the United States;

(7) Through public release (i.e., unlimited distribution) in any form (e.g., not necessarily in published form) after approval by the cognizant U.S. government department or agency …

(8) Through fundamental research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community. Fundamental research is defined to mean basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community, as distinguished from research the results of which are restricted for proprietary reasons …

The rest of the definition goes on in exactly the form we have in our amendment. I would be pleased, Minister, if you could explain to me, when next this matter comes before the Senate, the problem with the words 'fundamental research' as described in our amendment. Thank you.