Scott Ludlam (WA, Australian Greens) Share this | Hansard source

I take what I think is the last opportunity for me to speak on this bill, which has been the subject of protracted debate not only here but in the other place all week. This bill is a pretty sorry story. Many things that started on a handshake between George W Bush and John Howard ended in tears and this is just another late, straggling example of that. That is how this bill started. Let us be clear that this is a bill about enhancing the trade in weapons and interoperability between weapons systems and defence research between Australia and the United States.

The bill has been passed back to the chamber for concurrence. I am someone who does not concur at all. I was persuaded by the arguments that Senator Johnston was raising in this very place only 48 hours ago. I will put it on the record, although I may later come to regret it, that over the last 4½ years I have come to develop a grudging respect for Senator Johnston. One thing you could say about the shadow defence spokesperson is that he is across his brief, he knows his brief. You bring a defence bill into this place and Senator Johnston will give it the attention it deserves for the reasons that he brought to bear when he was advancing a perfectly reasonable coalition amendment. It was not one that the Greens sought to move. Ours lapsed, it was not acceded to by the chamber, so we voted for the fallback position, I suppose, from my party's point of view, based on arguments run by Senator Johnston.

Senator Johnston, you must have turned out to be a pretty cheap date, because 24 hours later you have been rolled, through you, Temporary Chair, by the Leader of the Opposition, who knows, with greatest respect to Mr Abbott, considerably less about these issues than you do. It is therefore a bit hard to listen to you coming back in here waving your finger and condemning the government for whatever we are condemning them for this afternoon when you are participating in facilitating what you know and what everybody knows, and what those in the other place who lined up to slam this bill yesterday know, is a terrible bill. It is a badly drafted bill. It still has some major outstanding concerns notwithstanding the fact that we did by negotiation with all parties at least achieve some amendments on the way through. The Senate committee sent Defence and others back to the negotiating table to try and get it right and the government was told to bring the bill back when it was no longer a work in progress. We are aware that the committee was forced to table its report 20 days early

I understand that it is now fairly common knowledge. Senator Feeney was good enough not to try to obfuscate this the other night when I put it to him. This is all about a press conference in Perth in November with Secretary of State Hillary Clinton and Secretary of Defense Mr Panetta. We know that that is what this is about, and this is why process has been so savagely abused in here.

The committee was robbed of the opportunity to evaluate 10 pages of complex government amendments and, while I may be expressing a degree of dismay at Senator Johnston's actions tonight, I was genuinely surprised when the three coalition signatories to the dissenting report to the committee's otherwise very good report into this bill being a work in progress backflipped again in a magic 24 hours. Was there also a magic phone call from US ambassador Jeffrey Bleich? You would have to say that he has excelled as a lobbyist on this occasion in sticking up for the interests of the United States government. That is his job.

Our job is to stick up for Australia, for Australian researchers and for the Australian academic endeavour. The committee report did give some hope that amendments would be referred back to the committee, because a dissenting report signed by the Greens and the coalition could have ensured that that would happen. But no, that was not to be either. All the bluster, all the huffing and puffing, all the concerns and assurances provided to the universities eventually were found to be completely hollow. It is not surprising that Senator Johnston tips his hat to the chamber and then sits down again.

The bill was improved through the Greens' amendments, as I acknowledged with Senator Feeney and Senator Johnston the other night, drawing heavily from recommendations and suggestions made by the universities. What I would take to be a more accurate reflection of the outcomes of the round table is that we improved the bill. A number of very serious offences that the researchers of this country are facing have been postponed for two years. In addition, the bill was improved through the establishment of the steering committee that will evaluate the workings of the legislation, advise the minister and the research minister, and pilot the export controls regime. The steering committee will also crucially and explicitly evaluate whether Australian researchers are penalised by this legislation more than their US counterparts. That is something; that is not nothing. That is a substantive improvement to the bill. Thank goodness the coalition did not sell us out on those in the House of Representatives as well.

The bill was not improved as it should have been. We do not have to imagine this in the abstract because we had the language and we had the arguments put by Senator Johnston. The Senate passed an amendment that would have mirrored US exclusions for fundamental research. It is as simple as that. The amendment implemented the Senate committee's view that legislation should not put Australian researchers at a disadvantage compared with their US counterparts. The NTEU stated that they were appalled at the failure of the House of Representatives to legislate amendments to the Defence Trade Controls Bill 2011 proposed by their Senate colleagues only 24 hours earlier to preserve the freedom of intellectual inquiry for Australian university researchers. The NTEU stated quite correctly:

University researchers now face a great deal of uncertainty about what research they can legitimately exchange or publish without potentially facing criminal sanction. An even worse outcome is that the government and coalition have relied upon a barely comprehensible reference to national interest considerations at the expense of Australia’s research and innovation efforts.

This is worth quoting at length, isn't it? They went on:

The Minister for Defence, Senator Smith, appears to have a limited understanding of the nature of academic research, when he said the legislation does not impact on domestic research. The union’s objections to this legislation are that researchers might be committing a criminal offence, with a maximum of 10 years imprisonment, if they share their thoughts or results for what is ostensibly ‘domestically focused research’ with overseas peers and colleagues for review and or verification.

A very important question that has not been answered about this amendment and about Australian researchers being accorded the same exclusions from export controls as their colleagues still remains. I should say that Minister Smith is the only person in the course of this entire debate who stood up and unequivocally defended the bill. Good on him—that is his job, that is fine. Everybody else who has spoken to this bill has slammed it or perhaps damned it with faint praise, as I might perhaps summarise Senator Feeney's contribution. In explaining why he did not support the insertion of this amendment into the bill, the minister in the other place said:

…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.

That is similar language to that which Senator Feeney just read in response to Senator Johnston's contribution.

The Congressional Record of the United States Senate of 29 September 2010 at pages S7722 and S7723—maybe Senator Feeney even has a copy of the record before him—states, only as a condition of ratification:

…Australia has—

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

I am taking the operative phrase in that statement from the US Congressional record to be '… enacted legislation to strengthen generally its controls …' over those things that I have listed. I am happy to table this, Senator Feeney, if that would be helpful, because I am going to put this question to you in a moment. As the Defence Trade Controls Bill 2011 meets these requirements in spades, irrespective of whether Senator Johnston's perfectly drafted clause 9A is included in the bill, can anybody advise me—either the government or the opposition; you are both voting to disregard the amendment that was passed the other night—of the detail of any standard or similar requirement for the control of intangible supplies of technology on the DSGL that the government of the US has imposed on, communicated to or requested of Australia in connection with future US ratification of the treaty? That is the question on which this all hinges, isn't it? I would like to hear anything at all that the minister has that has been put in writing that defines what the US means when it says that we need to 'enact legislation to strengthen generally its control over defense and dual-use goods'. If there has not been an insistence on any such threshold standards for 'strengthening generally', which I think is the phrase upon which this debate hinges, who has imposed them? They have been imposed domestically. Where did they come from? Senator Feeney, can you please provide us with an answer to that key question?