David Johnston (WA, Liberal Party, Shadow Minister for Defence) Share this | Link to 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.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to 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.

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

Thank you, Minister. Forgive me if I persist. You tell me that the legislation does not apply to information in the public domain. You say that is already dealt with and exempted. Are you are talking about the exemptions in the DSGL?

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

Yes.

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

You see, that is the problem. I am a little unconvinced because those exemptions are very narrowly drawn, as I said to you earlier this evening. They only concede what are already written into the DSGL The department takes a very narrow view of those exemptions. I do not think it is good enough to say, in the face of this legislation and in the face of what is replicated in US law when there is no such replication in the DSGL, word for word, that what I am seeking to do here is already covered because it is not.

I want to come along on this journey with you but I have to tell you: you're not taking me there when I have the words that they are using and our words are more restrictive than theirs. I am seeking to arrest that, and you are saying, 'No, no, no; those words are okay.' It may be that the roundtable, two-year transitional period and all of the things we are going to do with the last amendment fix that, but I am very much unconvinced if you are telling me those DSGL exemptions are what you are hanging all of this on.

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

Firstly, I made the point earlier in the debate that the US system is quite a different model and regulates a much broader range of circumstances than is proposed by this bill. That will not come as news to you. For example, foreign students are required to obtain permits for using controlled technology during their studies in the US. In response to university-sector concerns, 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. I have taken you to that in comments I gave before question time; indeed, I quoted the US ambassador and his own advice on this important point.

The DSGL exemptions to which you refer and about which you ask are being used by both the US and Australia to implement the Wassenaar controls. Australia and the United States have, through the obligations of the Wassenaar instrument, the same list. We are effectively talking, on this occasion, of the two regulatory regimes trying to achieve the same thing. So we say there is no difference of substance between the intent of the US system and their lists and that proposed here.

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

The reason I read to you the US export administration regulations is that they deal with exports, which is the main mischief we are seeking to arrest here. Exporting is the most obvious way of dealing with controlled goods, and that is what we want to stop, but let me reiterate because I am not sure we are getting to the point that I would like to get to: the reassurance that we can withdraw this amendment in confidence.

As I said to you just before question time, the items that are not subject to export administrative regulation are those on the control list. If it is a matter of the control list and you want to take issue with that definition, maybe we can look at that, but I do not think it is. I think the list is exactly the same. 'On the commercial control list that are already published or will be published, to arise during a result from fundamental research' et cetera et cetera. Fundamental research is as I have set out. It is qualified under a paragraph. 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. That is a pretty broad statement in the face of export-control legislation. All I am saying is that the exemptions in the DSGL are nowhere near as broad as that. They do not impact upon what is the direct mischief sought to be arrested by this legislation.

I think that, for us to be on all fours here and not to be disadvantaged in our future research, we can fit within the regime that the US has set out because they are happy with it. If people have to have permits to do things, if foreign nationalities are issues and if things of that nature come in, we can deal with that. I think that is a matter for the regulation and the minister. But the broad thrust of where the Americans have gone is the space we want to be in, and I am just not sure that we are getting there given their legislation. I think we are in a much worse position, and that really does concern me. But I remain to be persuaded.

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

I will continue to seek to persuade you. You are looking at the US system as a model. We say the US system is in fact more onerous than the framework we are offering. The critical point here is fundamental research. Our legislation is not seeking to control fundamental research in the same way as it is envisaged by the US system. An amendment to exclude activities conducted where there is an intention to publish would completely undermine the entire operation of the strengthened export control provisions, and it is a critical distinction between the framework offered here and that applying in the United States around this issue of fundamental research. I think that should give enormous comfort to the universities and research institutions with whom you have spoken, because ours is a regime that is not trying to control the conduct or outcomes of the fundamental research you quite reasonably are trying to protect.

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

Minister, let us come at it another way. You are saying that the exemptions in the DSGL are going to be interpreted by the department, in oversighting, administering and enforcing this legislation, in a way that does not impugn fundamental research? I will get you answer that formally in a moment, because this is the nub of the issue. All of these researchers want to know that their fundamental research as defined will not be the subject of this legislation.

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

To be forensic about it, the US system seeks to control the results of fundamental research. This framework does not seek to control the results of fundamental research.

Perhaps I can assist further. 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 considered very carefully. It is simply not correct to suggest that universities and researchers in the United States do not have to comply with US export controls. The US export control arrangements span multiple agencies and control lists, and that is one of the virtues of the Australian framework in comparison. There are numerous circumstances in which an export approval is required and numerous sets of exemptions 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 exemption does not apply in Australia because the bill does not contain any provisions which seek to regulate the outcomes of research. The US government has provided specific advice to Australia's Chief Scientist and the Senate committee on this critical point. The US government, the authority on US export controls, has made the following points very clear: there is no exception that allows controlled technology to 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.

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

I follow you on that, but I am not talking about the export of controlled goods. This is a global exemption that gives comfort to those carrying out fundamental research, basic and applied, in science and engineering, not with respect to goods. Clearly, if you are doing research with controlled goods, putting the words 'controlled goods' takes it to another dimension. This dimension that we are looking at is where the goods may or may not have a dual use. But what we are saying is that it is fundamental and applied research in science and engineering where the resulting information is ordinarily published. So we are taking a step back from the controlled goods. I do not have any issue with controlled goods. Let's control those 100 per cent—get the permits; do all the things we need to do. But, when we are doing, for example, a vaccine for uterine cancer, I really do not think that the fundamental research underlying that requires a permit—and I do not think it does in the United States. But the way this legislation stands now, the way it as is broad as it is, with the really narrow exemptions in the DSGL, I think we are locking ourselves into getting permits for that sort of research.

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

The permits are only for transfer overseas. They are not required for research conducted domestically within Australia. The inclusion of a fundamental research exemption was raised during the consultation process and it was discussed at length during the roundtable meetings chaired by Australia's Chief Scientist. The roundtable meetings recognised that not all research involving controlled technology will involve the level of detail that would require a permit. The agreed outcomes recognised that some research might involve the transfer of sensitive technology, and that should not be exempted from legislation.

The agreed outcomes instead proposed an implementation model which reduces the need to interact with government agencies on the legislative regime. This is specifically captured in the Chief Scientist's agreed outcomes as a model to be tested as part of the pilot. This model, to be tested during the transition period, involves academic institutions and a supplement to the Code for the Responsible Conduct of Research. It enables institutions to access technology and to determine when a permit might be required. The steering group will report to parliament on the effectiveness of this model. There will be an opportunity to amend the legislation based on the steering group report.

Our position, Senator, is that the regime proposed by the government is less onerous than that that applies in the United States. It is a model that is found in one bill and does not involve the miscellany of legislation and agencies that it does in the United States. The proposed framework of the government is going to be put through a transition period in which this parliament obviously ultimately has the final say. All of these things should give you comfort that the concerns that gave rise to your amendment are being adequately catered for.

The CHAIRMAN: The question is that opposition amendment on sheet 7296 moved by Senator Johnston be agreed to.

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

I move opposition amendment (2) on sheet 7296:

(2) Clause 11, page 14 (after line 21), after subclause (3), insert:

(3A) If a person makes an application under subsection (1), the Minister must decide whether or not to give the person a permit:

(a) if the Minister considers the application to be non-complex—within 15 days after the application is made; or

(b) otherwise—within 35 days after the application is made.

(3B) If the Minister fails to make a decision within the period required under subsection (3A), the Minister is taken to have decided to give the person a permit to do each activity covered by the application.

I will speak to that motion whilst the minister is gathering his thoughts.

This is the one where we are seeking to put a fairly rigorous scheduling regime in place for the approval process. In the event that the previous opposition amendment is unsuccessful in another place, we think that this one is very important because, whilst it is onerous—15 days for non-complex and 35 days for complex applications—we are asking the minister to not further inhibit the funding cycles, the research process, by getting on with the job on these time frames. I do not think they are anything out of the ordinary. I would be interested to hear what the government's attitude is.

Obviously (3B) is pretty strict: if the minister fails to make a decision within the period required under (3A)— 15 days for non-complex applications, 35 days for complex applications—then 'the minister is taken to have decided to give the person a permit to do each activity covered by the application'. So it is a self-triggering mechanism. If the 35 days from the date of receipt of the application expires and nothing happens, and the minister does not address the issue—say yes or no—then he is deemed to have said yes. I think that is a very suitable solution to the demise of the previous resolution—if it meets its demise.

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

I regret to inform you, Senator, that the government does not support this amendment. Defence is conscious of the fact that exporters require quick, clear decisions to be competitive. For routine applications, the assessment time is up to 15 working days, commencing from the date a complete application with all the supporting documentation is received. For sensitive applications requiring referral to members of the Standing Interdepartmental Committee on Defence Exports, the assessment time is up to 35 working days. DECO will inform applicants of this referral.

There can be exceptional circumstances where an assessment may go beyond 35 days. These are cases usually raising very complex and sensitive matters of foreign policy and national security. It is not always possible to resolve such matters in the additional 20 working days, especially where competing interests need to be considered by multiple departments and ministers. While such cases are relatively rare, Defence obviously works to resolve them as quickly as possible.

DECO processes approximately 2,500 applications each year relating to goods controlled on the Defence Strategic Goods List under regulation 13E of the Customs Act. These applications are assessed within the government's time frame of 15 working days for routine applications and 35 days for sensitive applications, except for a very small number of very sensitive applications which do take longer—and of course they take longer because of their very sensitivity. DECO also processes approximately 300 cases each year under the Weapons of Mass Destruction Act catch-all legislation. Noting that approximately 2,500 cases are processed each year, current statistics indicate DECO has fewer than 30 cases that have exceeded the normal time frame.

Let us be clear: what we are talking about here is a very small number of cases. These cases raise the most sensitive of foreign policy and national policy issues. They are difficult to resolve. Many people and agencies are involved, and this does take time.

The government says it is not in Australia's interests to have legislation that automatically allows the most sensitive and difficult cases to proceed without there being adequate assessment—a sentiment with which I am sure you would agree. This would have a very serious consequence if potentially dangerous technology was put in the wrong hands, and the kind of technology that could be involved might then go on to commit human rights abuses, develop chemical, biological and other weapons and, of course, equip foreign military forces—with implications for global security and stability. In these cases it would be very easy to say no due to the potential risks involved. However, where these risks can be properly assessed and where that assessment indicates that an export will not contravene our policy criteria, it is obviously in Australia's interests to allow that trade or collaboration to proceed. So I guess our final pitch to you on this one, Senator, is: is it better to say no quickly or sometimes in those rare number of cases to take a little longer but be able to say yes with a sense of confidence and assuredness?

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

You are very persuasive, Minister, and indeed I am persuaded not to divide on the voices. However, I make the point that I anticipate that those 2,500 applications will triple. I would like to know at some point, were the officials were to feel comfortable to bring to the roundtable the statistical analysis, what the time frames for those 2,500 applications are and what the average time is. I am sure it is much longer than 15 days.

Generally speaking, I am very conscious of the fact that whilst the department and the Defence Export Control Office do not have physicists, biologists, metallurgists et cetera at its fingertips, and therefore a very large amount of time is going to be required with sensitive and complex applications, I anticipate that the stakeholders at the roundtable will be quite demanding as to what type scheduling regime they are confronting. So, on that basis, I foreshadow that this consideration is a very important one as to the functionality and the way they do their business. Research often in educational institutions and universities is a business, and they will want to know where they stand. They cannot be put into the ether of the Defence Export Control Office for four or five months. That is what this regulation sought to arrest. I am happy with your explanation—persuasively put as it was—and we will not divide on the voices.

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

I indicate on behalf of the Australian Greens—and this may come as some surprise to the government and probably some relief to Senator Johnston, by the sounds of things and the rather peculiar mixed messages that he is sending—that we will be supporting this amendment. We were also persuaded. This might have come down as a bit of a lineball. I recognise that the opposition is basically creating an incentive, encouraging efficiency and encouraging some quick decision making for deciding on permits promptly and I do have some sympathy with the opposition in those intentions—for reasons that I guess I have made reasonably abundantly clear during the day.

But we recognise that making that cut-off period for decision making automatic may have unintended consequences. I would tend to agree with Senator Feeney when he identifies that the ones that are lagging and are taking the longest are likely the examples that are the most sensitive that involve dual-use technology and might involve materials or pieces of equipment that could be used for producing weapons of mass destruction and it is unlikely that trivial things are going to be held up behind the statutory time frames that Senator Johnston is proposing here that would then call for an automatic presumption that the permit was granted.

If there were real consultation between multi agencies, probably with international authorities or perhaps with groups like the IAEA—and you could imagine a couple of different scenarios—and the answers were not provided within time, my reading of this amendment is that the permit would automatically be granted. I suspect that sets up a degree of inflexibility that, in the wrong circumstances, could be quite dangerous. We believe that there must be some potential for contingency. The time frames put by the opposition, I guess, make sense, but not necessarily the part 3B that states that the permit is approved automatically. So we will not be supporting the amendment. I suspect, as Senator Johnston has indicated, there will not be a division called.

I cannot help but wonder what the fate of this amendment would be if the Greens had chosen to support it. Senator Johnston has dropped about a dozen hints in the last hour or two that he is desperate to drop the other amendment that the Senate just passed. I wonder what kinds of incentives exactly are being offered to the government here.

Senator Feeney was not able to persuade Senator Johnston to drop this amendment now. I encourage the coalition: stick by your guns on this one—bad pun, actually, under the circumstances. Stick with the arguments that you have put. That was well argued. I hope your arguments are sustained by your colleagues in the other place so that we pass this substantive amendment to this bill. Between us, the amendments that the government has made, that the Greens have made and that the coalition have put forward that we have supported, we will be able to say we have made substantive improvements to this bill. So I do not know what the dark hints about withdrawing the amendment are all about. I cannot support this one, opposition amendment (2), but I understand the thinking behind it.

Question negatived.

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

I move government amendment (9) on sheet BM290:

(9) Clauses 10 and 11, page 10 (line 4) to page 15 (line 16), omit the clauses, substitute:

10 Offence—supply of DSGL technology

(1) A person (the supplier) commits an offence if:

(a) the supplier supplies DSGL technology to another person; and

(b) either:

  (i) the supply is from a place in Australia to a place outside Australia; or

  (ii) if the supply is the provision of access to DSGL technology—at the time of the provision of access, the supplier is in Australia and the other person is outside Australia; and

(c) either:

  (i) the supplier does not hold a permit under section 11 authorising the supply of the DSGL technology; or

  (ii) the supply of the DSGL technology contravenes a condition of a permit that the supplier holds under section 11; and

(d) there is no notice in force under subsection 14(1) in relation to the supplier and the supply.

Penalty: Imprisonment for 10 years or 2,500 penalty units, or both.

Exceptions

(2) Subsection (1) does not apply if:

(a) the supply is of DSGL technology in relation to original goods; and

(b) the supply is by an Australian Community member or by a member of the United States Community; and

(c) the supply is to an Australian Community member or a member of the United States Community; and

(d) the supply is for an activity referred to in Article 3(1) (a), (b), (c) or (d) of the Defense Trade Cooperation Treaty; and

(e) at the time of the supply, the original goods are listed in Part 1 of the Defense Trade Cooperation Munitions List; and

(f) at the time of the supply, the original goods are not listed in Part 2 of the Defense Trade Cooperation Munitions List.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.

(3) Subsection (1) does not apply if:

(a) the DSGL technology is supplied by a person who is a member of the Australian Defence Force, an APS employee, a member or special member of the Australian Federal Police or a member of the police force of a State or Territory; and

(b) he or she supplies the DSGL technology in the course of his or her duties as such a person.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code.

(4) Subsection (1) does not apply in the circumstances prescribed by the regulations for the purposes of this subsection.

Note: A defendant bears an evidential burden in relation to the matter in subsection (4): see subsection 13.3(3) of the Criminal Code.

Geographical jurisdiction

(5) Section 15.2 of the Criminal Code (extended geographical jurisdiction—category B) applies to an offence against subsection (1).

Definition

(6) In this section:

place includes:

(a) a vehicle, vessel or aircraft; and

(b) an area of water; and

(c) a fixed or floating structure or installation of any kind.

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

Minister, I note the wording of this amendment talks about the supply from a place in Australia, and you then define at the bottom of the amendment the word, 'place'. Can you explain why you are doing that? I would have thought the words 'within Australia' would have sufficed, notwithstanding that that could be:

(a) a vehicle, vessel or aircraft; and

(b) an area of water; and

(c) a fixed or floating structure or installation of any kind.

Correct me if I am wrong: I am interested in why we have gone down this path and what is the intent in this quite novel description of a place. If you could assist me with that, I would be obliged.

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

Unfortunately, I am not in a position to assist you. I guess that is a matter for the drafter and I do not have their advice to hand. I will take that on notice.

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

Further down your subsection (3), you have provided some exemptions which I know are very, very important for the substance of the act through a whole lot of activities. Those activities include broking, arranging—all of those. What you do is you exempt:

… a person who is a member of the Australian Defence Force, an APS employee, a member or special member of the Australian Federal Police or a member of the police force of a State or Territory; and

(b) he or she supplies the DSGL technology in the course of his or her duties as such a person.

That is a very important exemption that I am pleased to see in this section but there are many other sections—can I draw the departmental officials' attention to—that could equally benefit from having that exemption put in. It concerns me that there are a number of places in the legislation where that exemption has not been put in. I think it would be good if we looked at that closely to achieve that purpose.

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

Thank you for that, Senator. One of the benefits of the approach the government is adopting is that the steering group will have the opportunity to look at that very matter and, should your reasoning prevail, make those sorts of recommendations to this parliament so that those changes can be made.

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

Just briefly: this is one of those amendments that by rights should have gone to the Senate Standing Committees on Foreign Affairs, Defence and Trade so that it could have been properly assessed so that we could have taken evidence so that we could have put these propositions to the witnesses who have given up an enormous amount of their time and effort to try and inform this parliament of some of the mistakes that are being made. All I will say, as I have said on a number of government amendments, is: this has not been properly analysed. I will not be calling a division but I want to record my thorough objection to the way that the government is handling this bill.

Question agreed to.

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

By leave—I move government amendments (10), (11), (17), (21), (22), (24) and (25) on sheet BM290:

(10) Clause 14, page 16 (line 24) to page 17 (line 12), omit subclause (1), substitute:

(1) If the Minister believes or suspects that, if a person were to supply to another person particular DSGL technology in any circumstances or in particular circumstances, the supply would prejudice the security, defence or international relations of Australia, the Minister may give the person a notice:

(a) prohibiting the person from supplying that DSGL technology; or

(b) prohibiting the person from supplying that DSGL technology unless conditions specified in the notice are complied with.

Note: Section 67 deals with giving notices under this Act.

(11) Clause 14, page 18 (lines 9 to 25), omit subclause (10), substitute:

Offence

(10) A person commits an offence if:

(a) the person supplies DSGL technology; and

(b) the supply contravenes a notice, or a condition specified in a notice, that is in force under subsection (1); and

(c) the person knows of the contravention.

Penalty: Imprisonment for 10 years or 2,500 penalty units, or both.

(17) Clause 27, page 33 (lines 8 to 10), omit note 2, substitute:

Note 2: The offence in section 10 (about supplying DSGL technology) may not apply to the holder of an approval.

(21) Clause 63, page 75 (line 7), omit "an activity", substitute "a supply".

(22) Clause 71, page 82 (lines 26 and 27), omit "technology relating to goods", substitute "DSGL technology, or technology relating to goods,".

(24) Clause 73, page 85 (table item 1, column 2), omit "activity", substitute "supply".

(25) Clause 73, page 86 (table item 1, column 1), omit "an activity", substitute "a supply".

The concept of defence services has been removed from the bill. Explicit coverage of these services is unnecessary as the services will now be covered by the definition of DSGL technology. All of these amendments relate to removing this concept of defence services and consequential amendments to reflect the amendment of the definition of DSGL technology.

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

Minister, with respect to amendment (10)—so we are all on the same page, I will indicate what it says:

(1) If the Minister believes or suspects that, if a person were to supply to another person particular DSGL technology …

He may issue a notice prohibiting such a supply unless conditions that he imposes are in the notice. Is that a reviewable decision by the minister?

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

I thank the Senate for its forbearance. No, that decision is not reviewable.

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

Thank you, Minister, for that. Is that satisfactory? I am concerned that the minister is going to have a unilateral, unfettered and absolute discretion to extinguish an export by an Australian corporation, with no right of reply, by-your-leave or any other expression of disdain or dissent from such a decision. Is that appropriate? It may well be, but it gets a bit nerve racking when you give all this power to the minister.

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

We say, obviously, that it is appropriate in these circumstances. There are a limited number of decisions under this bill which are treated in this manner and, obviously, this represents an issue of potentially enormous importance.

That importance flows from the fact that there is potentially highly sensitive content and the fact that it may involve issues of the highest consequence to government. These decisions are of high importance relating to Australia's security, defence or international relations and, obviously, these are decisions that any minister of the Crown would make only in the context of having the most thorough and persuasive advice.

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

From that I can take it that if a researcher is doing work on a low noise oscillator, which is a very important component in a whole host of military applications, but that oscillator is used for a peacetime objective, then the minister can stop him without any right of reply from that institution or that researcher? In other words, Minister, a piece of fundamental research, basically applied.

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

I guess that the first point the government would make here is that the offences of which you speak and which are created by this bill are delayed for two years, and that these are, again, matters that the steering group will have an opportunity to look to. I guess that I would repeat the fact that obviously it is a decision that the minister would not make lightly.

I guess that there have been recent decisions of government that are perhaps analogous; they did have important commercial implications for parties, obviously, but they were made by a government that was dealing with issues of enormous sensitivity. So I do not think that this is unprecedented, and obviously it is a power that would either be exerted responsibly or the government of the day would suffer the implications of treating it otherwise.

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

Given that answer, I think that the two-year transition period is important. I realise that the minister has to have some ultimate sanctioning authority in this process. I just wanted to clarify exactly, or attempt to clarify, the length and breadth of that authority.

I go to amendment 11, wherein it is set out that:

A person commits an offence if:

  (a) the person supplies DSGL technology; and

  (b) the supply contravenes a notice, or a condition specified in a notice, that is in force under subsection (1); and

  (c) the person knows of the contravention.

I draw attention to the fact that you have included intent in this offence. The penalty is 10 years imprisonment or 2,500 penalty units, or both.

I do not take any issue with the seriousness of the penalty; I think it needs to be very serious. But the fact is that you have introduced intent into that, and yet when you come to amendment 12—and, for the sake of completeness that is:

A person commits an offence if:

  (a) either:

     (i) the person publishes DSGL technology to the public, or to a section of the public, by electronic or other means; or

     (ii) the person otherwise disseminates DSGL technology to the public, or to a section of the public, by electronic or other means;

there is no requirement for intent, and so what you have is an absolute offence. You have a supply, which is intentional, but the publishing and the dissemination may be inadvertent and the person is still liable to the 10 years.

That greatly concerns me. I think that is anomalous. I think that you want to have someone publishing DSGL technology intentionally and I think that you want to have someone disseminating such technology intentionally. But I am open to persuasion, as I always am.

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

I am advised that the Criminal Code has a general requirement concerning intent, and so that reflection in the legislation is mundane. I am looking at the exceptions:

… the Minister may, in writing, approve a person publishing or otherwise disseminating specified DSGL technology to the public or to a specified section of the public. The Minister may give an approval only if the Minister is satisfied it is in the public interest to do so.

So there are mechanisms within the framework to contemplate the publishing of that material.

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

Minister, obviously if he is applying for a permit he realises he is dealing with something that is sensitive and in breach. But if he does not realise that and he is out there as a researcher doing research into something that is not defence-related, but publishes something with respect to that work that is being developed in another area—and can I tell you that this is very common?—he will be caught under this section even though he has no intent to breach the legislation.

This concerns me greatly. I do not expect you to make any changes now. I am drawing it to your attention so that the working group can deal with this, because I am absolutely convinced you need to put an intention clause in there so that it is, as I say, an intentional publication.

You talk about the public interest. I note that is a very subjective term. What do we see, if anything, the minister considering in the public interest?

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

That is a difficult question to answer, as you would appreciate, Senator. I look to the example I used a little earlier, and that was bird flu research. The minister is able to waive the requirements and introduce something into the public domain where, as was the case with bird flu, there was a broader, vaster public good required. I am unable to anticipate what the next example of such an occasion might be, but clearly the regulatory regime proposed by the government does contemplate those sorts of circumstances and the government responding.

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

Thank you, Minister. I appreciate that answer. I go to subclause (4), which says:

If the Minister gives an approval under subsection (3), the Minister must give the person the approval.

Why is there a distinction between the minister actually giving an approval and the physical handing of the approval, which is not a notice or a certificate or anything like that, to the person who is the beneficiary of the approval? I think this creates an unnecessary confusion—'You've got an approval, but did the minister give you the approval?' Do you follow me? I do not see that as necessary. Is there something I am missing there? Can the department help me with that?

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

I am advised that it is a drafting convention to establish the requirement that such a person has the written approval to hand as a document so that confusion does not arise if the person says they received verbal approval or an email or some other intangible approval. I am advised that is a drafting convention.

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

With respect, it should talk about something in writing, if you follow me. I have no real issue with it other than the fact that it is very confusing to people.

I turn to amendment (17). I am very concerned when you, in note form, spell out that the offence in section 10 relating to the supply of DSGL technology 'may not apply to the holder of an approval'. Surely that should have been a section, not just a note.

I know that other people want to get some work done tonight, so I will keep going. In amendment (22) you have used the expression again: 'relating to goods'. That is a nebulous broad term, particularly when the Commonwealth is exercising a right of forfeiture. I take it that there is no right of appeal and that it is not a reviewable decision. Thank you.

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

I want to ask a very quick question to follow up on a question that Senator Johnston raised right at the outset. It related to judicial review and whether the minister's decisions around permitting were reviewable. Senator Feeney's answer on advice was fairly unambiguous as he said no. I test this proposition with the minister: does the bill anywhere—I may have missed it—formally exclude the operation of the Administrative Decisions (Judicial Review) Act?

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

No.

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

So a minister's permitting decision would be judicially reviewable?

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

Yes.

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

That was not actually the answer that you gave to Senator Johnston. So there is no formal or internal review mechanism enshrined in this act, but it could be judicially reviewed if the minister had made an error at law somewhere?

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

Just to clarify: previously, I was working on the basis that we were talking about administrative review, not judicial review.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

The question is that government amendments (10), (11), (17), (21), (22), (24) and (25) on sheet BM290 be agreed to.

Question agreed to.

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

by leave—I move government amendments (12) and (23) together:

(12) Page 18 (after line 28), at the end of Division 1, add:

14A Publishing etc. DSGL technology

(1) A person commits an offence if:

(a) either:

  (i) the person publishes DSGL technology to the public, or to a section of the public, by electronic or other means; or

  (ii) the person otherwise disseminates DSGL technology to the public, or to a section of the public, by electronic or other means; and

(b) the person does not hold an approval under this section authorising the publication or dissemination of the DSGL technology.

Penalty: Imprisonment for 10 years or 2,500 penalty units, or both.

Exception

(2) Subsection (1) does not apply if the DSGL technology has already been lawfully made available to the public or to the section of the public.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.

Approvals

(3) The Minister may, in writing, approve a person publishing or otherwise disseminating specified DSGL technology to the public or to a specifiedsection of the public. The Minister may give an approval only if the Minister is satisfied that it is in the public interest to do so.

(4) If the Minister gives an approval under subsection (3), the Minister must give the person the approval.

Note: Section 67 deals with giving approvals under this Act.

Geographical jurisdiction

(5) Section 15.2 of the Criminal Code (extended geographical jurisdiction—category B) applies to an offence against subsection (1).

Approval not a legislative instrument

(6) An approval under this section is not a legislative instrument.

(23) Clause 73, page 85 (line 2), after "section 14,", insert "subsection 14A(3),".

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

I indicate that the Greens will strongly oppose these amendments and that we will be seeking to call a division when we get to it. I have a couple of general questions to put to the minister first regarding these government amendments. Are there equivalent provisions in US statutes, either in EAR or ITAR regs, that explicitly make it a crime to publish, as there is in clause 14A of this bill?

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

The US system operates differently. The conduct in the US system that you are describing would be considered an export, and exports are controlled.

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

That may even have helped. So you will not be able to point me to a particular provision, but you are saying that these things are regulated differently in the United States. My reading of proposed section 14A is that academic communication inside Australia, whether to a foreigner or to an Australian, if dealing with DSGL listed technology, would potentially be a crime and require approval from the Minister of Defence. Is that a fairly simple proposition to put to you?

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

If a person is publishing materials that are excluded under the DSGL then they are effectively de-controlling that material, and so my answer to you is yes.

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

It would then appear to me that the definition of 'publication' becomes extremely important. At what point in the research continuum would a researcher be required to apply for a permit if contemplating publication of DSGL listed technology? If it is not at the point of publication then is it not the case that the minister would effectively control what kind of research could be done? Is this potentially criminalising the research endeavour, or merely at the point of publication?

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

The first issue is at what point a researcher seeks to make such a disclosure. I draw you back to the example I tried to use earlier in this debate when talking about the mass spectrometer. Where information is of a highly technical nature—in that example, if a researcher was indicating how the blueprints of that piece of equipment might be used to produce weapons of mass destruction—then obviously that is something we seek to have control over. If the research is going to the more mundane aspects of how that piece of equipment works and the technical arrangements around it then we would not.

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

Can you confirm for me that this offence was not in the original drafting of the bill, but arrived as a result of the amendments that the government circulated post round tables and post the work of the committee?

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

Yes, it is new. With your indulgence, I might go through this in a little more detail.

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

Yes, because I was going to ask.

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

This is an amendment that introduces a new offence for publishing or disseminating DSGL technology. Proposed subclause 14A(1):

… makes it an offence for a person to publish or otherwise disseminate DSGL technology to the public, or to a section of the public, by electronic or other means where the person does not hold an approval under this section.

This offence will cover persons who intentionally release controlled DSGL technology into the public domain. As a safeguard, the offence provision will include the ability for the Minister to give written approval for the publication or dissemination of DSGL technology if it is in the public interest to do so.

We talked about that a few moments ago.

The offence does not apply if the DSGL technology has already been lawfully made available to the public, or to a section of the public.

The offence will be relevant to researchers only if their intended publication communicates specific controlled technology that is listed on the DSGL—that is, if the publication includes the information that communicates how to develop, produce or, in some cases, use items that are listed on 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 de-controlling 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 allow that same Australian researcher to publish the same controlled information to the public at large.

Defence envisages that the publishing offence will have an exemption to allow publication of controlled information in rare circumstances where the minister believes 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 you have heard me use the bird flu example. All of this will be tested during the pilot program and will be conducted during the transition period and thereby overseen by the Strengthened Export Controls Steering Group.

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

At the risk of labouring the point, I call the minister on a couple of definitions. Firstly, what definition of 'the public interest' will apply in this case? I know that is a notoriously difficult concept to pin down. Secondly, proposed subsection (2) of this amendment reads:

Subsection (1) does not apply if the DSGL technology has already been lawfully made available to the public or to the section of the public.

Where can we find a definition of 'section of the public'? What is the cut-off between public and not public as far as interpretation of these clauses is concerned?

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

The intent of the word 'section' is to capture things such as an open conference and, perhaps, a discourse within a professional group or a faculty. That is probably as much as I can assist you with.

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

I am quite keen to hear Senator Johnston's take on these amendments. I am still not convinced as to why these amendments snuck in, to be honest—why the government drafted this initial bill, sat it on the table and consulted the hell out of it for 12 months without such an offence for publication. You would understand why, when attracting a penalty of imprisonment for 10 years or 2,500 penalty units—and it is my understanding the government is also proposing to hike the amount of money that a penalty unit will cost you—was not seen fit to include in the original iteration of the bill, I am strongly inclined to strike this amendment out. I am very keen to hear Senator Johnston's views on why that should not be the case.

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

I want to speak to Senator Ludlum's point about the timing and how this matter came to be before us. Discussions with the university sector on the issue of publication commenced on 10 July 22. The proposal to introduce a publication offence with the ability to apply for permits was formally raised in Defence's submission to the Senate on 8 August 2012. Subsequent to the Senate committee's preliminary report, Mr Ken Peacock AM and Mr Alex Zelinsky raised this issue in all of their consultations. The result was their recommendation to remove the associated permit framework and to simply have an offence relating to publication. This made it clearer that the legislation is not attempting to introduce a regime that requires all publications to be reviewed for a permit and that it would be quite rare that a publication would have the level of detail that would meet the high threshold of concern. The publication issue was formally raised and discussed at the roundtable meetings chaired by Professor Chubb.

Researchers and institutions have previously grappled with the balance between national security interests and the public good of disclosing the outcomes, and some examples of that were noted by attendees. During roundtable discussions it was noted by some research organisations that the legislation would in fact help to provide a framework for institutions when considering these sorts of issues when publishing. The issue did not feature heavily in the final roundtable discussion because the focus by then was on the scope of the controls. The narrow scope of the controls consequently narrows the effect on publication. The reduced scope of the controls in the institutional assessment model was broadly supported by roundtable attendees, I am advised, with the exception of one party.

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

As I indicated previously when talking about the intent in section 14 subsection 11, wherein knowledge is specifically nominated as an element of the offence, publishing is a very important prohibition with respect to DSGL technology—there is no doubt about that. The minister has confirmed that inadvertent release of DSGL technology or the inadvertent dissemination, which may be the erroneous pressing of the send button, is not caught by the provision. You have been very clear on that, Minister, and I thank you for that. But in this day and age I think we need to be a little careful that we do cover this provision, this activity, this potential conduct. People do need to be aware that if they are dealing in DSGL technology as defined they need to be very, very careful what they do, because it may be that they will be fighting off an application or a prosecution for 10 years imprisonment or 2½ thousand penalty units or both. Minister, you have answered me with respect to the public interest, and I think that is a very nebulous, subjective term. The coalition will be supporting the government's amendment, because I think it is necessary.

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

That is a bit of a shame. I have no other questions. I am not at all satisfied and we will call a division on this one, Chair, when you put the question, because it is one of the more egregious amendments and one that I think would have been really valuable for the committee to examine. My understanding is that this issue was quite a major topic of the roundtables and one that was unresolved. The minister even acknowledges that it was not resolved to the satisfaction of at least one party, and I am glad to hear the minister acknowledge that.

Creating a whole new offence for the publication or other dissemination of DSGL technology by the public or sectors of the public by other means was not proposed in the original bill. It was not proposed that either publication or the wider concept of dissemination would be potentially criminalised. I think the practicalities of what this clause would mean for research should have been better contemplated. This is the sort of thing that we could have used a day or a half-day committee hearing to bounce off expert witnesses and they could have told us exactly how this is going to play out in the real world.

Because it is about the possible publication of information about controlled material at some point in the future, it effectively means that the defence minister, even if it is not his intention, can censor research itself. On some of the advice that we have, because researchers will need to consider making applications at the commencement of the research process not necessarily at the point when they are ready to hit to print but much further upstream, it is not clear from the supplementary EM what the words 'publish or otherwise disseminate' mean. But it would appear to be a very broad offence provision. Other legislation defines 'publication' very broadly to mean publishing in newspapers or via TV, radio, internet, articles and so on. Whereas I think we are assuming the rather more narrow interpretation of publishing as in it going into a peer reviewed journal. As the term 'publication' is used in other statutes, it is very much more broad than that.

The Greens will therefore oppose this amendment, partly because it has not been examined. We were not given the courtesy of examining this amendment during the committee process. We will also oppose it because it introduces a chilling effect, quite a dangerous one, attaching a 10-year criminal offence to the publication of scientific research, unless you are willing to tug the sleeve of the defence minister who quite frankly probably has better things to do. I think this is a very dangerous amendment to introduce at such a late stage into this bill. Whatever the opposite of commending is, that is what we are doing to this amendment to the chamber.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

The question is that government amendments (12) and (23) on sheet BM290 be agreed to.

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

by leave—I move government amendments (19) and (20) on sheet BM290 together:

(19) Clause 58, page 71 (line 3) to page 72 (line 8), omit the clause, substitute:

58 Keeping and retaining records

Permit holders under Part 2

(1) A person must keep records of supplies that the person makes under a permit given to the person under section 11.

(2) A person must keep records of arrangements that the person makes under a permit given to the person under section 16.

Approval holders under section 27

(3) A person who holds an approval under section 27 must keep records of activities that the person does that are prescribed by the regulations for the purposes of this subsection.

Form of records

(4) Records under this section must contain the information prescribed by the regulations for the purposes of this subsection. The regulations may prescribe different information for different kinds of records.

Retention of records

(5) The person must retain the records for a period of 5 years.

Offence

(6) A person commits an offence if:

(a) the person is subject to a requirement under this section; and

(b) the person contravenes the requirement.

Penalty: 30 penalty units.

(7) An offence against subsection (6) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(8) Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to an offence against subsection (6).

(20) Clause 59, page 72 (line 11), omit "make", substitute "keep".

In response to concerns raised during consultation and in response to recommendation (5) of the Senate committee's preliminary report, the record-keeping requirements have been eased. They now focus on the requirement to keep records rather than to make individual records for activities. This is consistent with existing good business practice of keeping records. Amendment (19) substitutes a new clause 58, which provides for the keeping and retaining of records. Amendment (20) makes a consequential amendment to the wording in clause 59. The amendments will reduce the administrative burden on industry and the academic and research sectors. The record-keeping requirements are intentionally broad and provide that the person must only keep records of the relevant activity that the person does, rather than making records within the prescribed time frame. The regulations will prescribe the information that is to be included in a record. The regulations are currently being redrafted to reflect these amendments. I commend the amendments to the Senate.

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

That is a very interesting description of what I am reading between the amended clause 58 and the previous, unamended clause 58, because you gave a seven-day leeway. You allowed someone seven days to get their records in order before they were in breach of the section and you did not make it an offence of strict liability. Now you have done that and you have said a person must keep records so that a minute after a transaction or dealing has gone forward they have got to have records. What you have just read out is, may I say respectfully, completely the opposite of what you have achieved here. I am not going to vote this amendment down. I think it is a peccadillo in the scheme of the other sins of this legislation, of which there are many. But can I say, whoever is writing your script does not get it, with respect.

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

That is an excellent question, Senator Johnston. If only we had the opportunity in the questions to test that against some of the expert witnesses who would have fronted up and given you some answers. If they had, I suspect you would not have liked the answers very much. If the Minister has something to say I would be delighted to hear it. Senator Waters informs me that the opposite of commending an amendment is to either condemn it or decry it, so I will do both of those things and move on.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

The question is that government amendments (19) and (20) on sheet BM290 be agreed to.

Question agreed to.

Senator Ludlam, do you wish to move Australian Greens amendment (3) on sheet 7297—that is, the last one on the running sheet? I believe the other two are not applicable any more.

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

All right. I did not realise we were going to get there quite so quickly. I move:

(3) Page 86 (after line 20), after clause 74, insert:

74A Strengthened Export Controls Steering Group

(1) As soon as practicable after this section commences, the Minister must appoint, in writing, the members of a Strengthened Export Controls Steering Group.

(2) The Group's functions are to advise the Minister and Research Minister on:

(a) the adequacy of the organisational and governmental arrangements, and the identification, assessment and management of risks, costs and administrative burden, associated with intangible transfers of DSGL technologies; and

(b) the oversight, design and delivery of a pilot program to identify the adequacy of this Act, the regulations, the implementation arrangements and the resources for regulating intangible transfers of DSGL technologies; and

(c) recommendations for amendments to this Act, the regulations and the implementation arrangements in view of the pilot program; and

(d) whether this Act, the regulations and the implementation arrangements are not more restrictive than United States export control regulations in relation to university activities.

The Group also has any other functions determined, in writing, by the Minister.

(3) The Group must:

(a) consider quarterly progress reports from participants in the pilot program on implementation of the strengthened export controls; and

(b) through its Chair, report to the Minister and the Research Minister every 6 months; and

(c) if required by the Minister and the Research Minister, provide additional reports.

(4) The Group must advise the Department in relation to obtaining appropriate technical and scientific expertise regarding Australian Government consideration of the control lists of international regimes and of the Defence and Strategic Goods List.

(5) The Group may establish subgroups to support its functions. Subgroups must report to the Group.

(6) The Group's membership must include:

(a) Australia's Chief Scientist, as the Chair of the Group; and

(b) no more than 4 representatives of the industry sector, one of whom is a co-Deputy Chair; and

(c) 2 representatives of the university sector nominated by Universities Australia, one of whom is the other co-Deputy Chair; and

(d) the Chief Executive Officer of the National Health and Medical Research Council, or its nominee; and

(e) the Chief Executive Officer of the Australian Research Council, or its nominee; and

(f) a representative of the Department; and

(g) a representative of the Department administered by the Research Minister.

(7) The Group must meet at least once each quarter.

(8) A quorum of the Group is constituted by the Chair, one representative referred to in paragraph (6) (b), one representative referred to in paragraph (6) (c) and the representatives referred to in paragraphs (6) (f) and (g).

(9) The Group must report every 6 months, in writing, to the Minister and the Research Minister, including any dissenting views of a member of the Group.

(10) The Group must give its final report to the Minister, and the Research Minister, before the second anniversary of the day the Treaty between the Government of Australia and the Government of the United States of America concerning Defense Trade Cooperation done at Sydney on 5 September 2007 enters into force.

(11) The Defence Export Control Office must provide a secretariat for the Group.

(12) The secretariat must:

(a) prepare and circulate agendas in conjunction with the Chair; and

(b) work with the authors of agenda papers to ensure quality and timeliness; and

(c) ensure that the agenda approved by the Chair and papers are received by members at least 1 week before each meeting; and

(d) prepare and provide to the Chair, within 1 week of the meeting, the minutes of the meeting; and

(e) circulate the meeting outcomes to all members following clearance by the Chair, and maintain Group records.

(13) The office of a member of the Group is not a public office within the meaning of the Remuneration Tribunal Act 1973.

(14) The Group may determine the procedure to be followed in performing its functions.

(15) The Minister must cause a copy of the Group's final report to the Minister to be tabled in each House of the Parliament within 15 sitting days of that House after the day the Minister receives the final report.

(16) The Group is abolished immediately after its final report is given to both the Minister and the Research Minister unless, before then, the Minister and the Research Minister determine, in writing, that the Group is to remain in existence until the end of a specified period.

(17) An instrument under this section is not a legislative instrument.

(18) In this section:

Research Minister means the Minister administering the Science and Industry Research Act 1949.

I might test quickly with Senator Johnston whether that means he has withdrawn opposition amendment No.3? I get an indication that he has. I will keep it fairly brief then as the hour is getting fairly late.

This amendment effectively strengthens the Export Controls Steering Group, which we have spoken of a little bit during the debate. Again, it is an amendment that I am very pleased that we were able to get in negotiation with the government. I thank the Minister's staff and the drafters who have been scrambling around after this rather awkward process, trying to pull the amendments together. It is an amendment that is not satisfying enough to make me want to vote for the bill, so I will make that very clear, but as with the earlier Greens amendment that we passed, again in negotiation with the government, I am pleased that at least, I believe, we will come to greatly appreciate the fact that the Export Controls Steering Group will have move teeth than it otherwise would have had. We will be able to learn more about the actual operation of the bill. I commend this amendment to the chamber.

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

Hopefully, Senator Ludlam, you draw great comfort from the fact that the government has adopted your amendment and that we remain amenable to reason in these negotiations and the proceedings that come from them. The government supports the Greens' amendment to insert a new clause 74A, which will establish the Strengthened Export Controls Steering Group. The government had tabled an amendment to implement the steering group but this amendment has a greater level of specificity, which will give greater assurance to stakeholders that the steering group will operate as agreed during the Chief Scientist's roundtable. I note that this includes an additional function for the steering group—to advise ministers whether the bill creates a more restrictive regime than in the United States in relation to university activities.

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

The opposition endorses and adopts all of those words of the Minister. The Greens' amendment is the preferred option of the three.

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

I acknowledge for the record that it is a very rare thing in this place for that kind of outcome to occur, and it has taken a lot before. As this is probably the last amendment that we will be dealing with, I want to thank my staff, particularly Felicity Ruby, who has worked through the entire weekend. I suspect Senator Johnston and the Minister have put a number of their staff in the same position, to catch up with the mad scramble that has been dished up to them by a bad process. I will acknowledge without condition that it is rather a rare and wonderful thing that an improvement can be made on the fly to a bill by negotiation, and it is worth acknowledging when that occurs. I do commend this amendment to the chamber.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

The question is that Australian Greens amendment No.3 on sheet 7297 be agreed to.

Question agreed to.

Bill, as amended, agreed to.

We now move to the second bill, which is the Customs Amendment (Military End-Use) Bill 2011. There are two government amendments to that.

Bill—by leave—taken as a whole.

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

by leave—I move:

(1) Schedule 1, item 1, page 5 (after line 16), at the end of Division 1AA, add:

112BC Statement to Parliament

As soon as practicable after the end of each financial year, the Defence Minister must cause a statement to be tabled in each House of the Parliament about the exercise of the Defence Minister's powers under this Division during that year (whether or not the statement is part of an annual report).

(2) Schedule 1, item 2, page 5 (line 17), before "definition", insert "paragraph (b) of the".

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

The question is that government amendments on sheet BM278 be agreed to.

Question agreed to.

Bill, as amended, agreed to.

Bills reported with amendments; report adopted.