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

I table two supplementary explanatory memoranda relating to the government amendments that are being moved to the Defence Trade Controls Bill 2011 and the Customs Amendment (Military End-Use) Bill 2011. I move government amendment (1) on sheet BM290:

1) Clause 2 , page 2 (table item 2 ), omit the table item, substitute:

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

I thank the parliamentary secretary for his attendance today. I must in passing say that I admire his ability to come into the breach in the way that he has in what is a very difficult piece of legislation. I ask the parliamentary secretary if the change to the commencement date is about the two-year roundtable transition period and whether that is the only relevant alteration to this date.

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

I thank the senator for his question. In the Senate on 10 October 2012, the government circulated proposed amendments to the legislation and we believe those amendments fully reflect the outcomes of the Chief Scientist's roundtable.

Specifically concerning the transition period, the offence provisions relating to the bill's strengthened export control provisions will not take immediate effect, rather there will be a transition period of up to 24 months. We believe this will enable all relevant sectors to become familiar with their obligations under the bill.

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

Much obliged to the minister for that. When the minister says a transitional period of up to 24 months, in dealing with criminal sanctions, I would have thought it is either 24 months or it is not. Could the minister clarify.

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

As I understand it, the government had resolved to adopt a process where a period of up to 24 months was available, and it was open to accept a shorter period if that was the recommendation given to government. So it was a process that was flexible but, obviously up to 24 months, the government takes due regard for the concerns you are pointing out but does provide the flexibility to move faster than that if that is the advice government receives.

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

That is the advice from the steering committee or is it ministerial discretion to abbreviate the 24-month period at his discretion absolutely?

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

I am advised that it is the steering committee.

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

I would not mind that being clarified: whether there remains ministerial discretion or whether that time period is absolutely on the basis of the advice of the committee.

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

I am advised that there is no ministerial discretion; that it is a matter for the steering committee.

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

On another matter but also in terms of general questions around the bill: can the parliamentary secretary explain to us why the committee was required to report three weeks before its reporting date?

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

That is not a matter I can particularly assist you with, Senator; that was a decision made by the minister.

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

Parliamentary Secretary, some of the minister's advisers and some of the departmental advisers are sitting right next to you in the box: why was the committee required to report three weeks before its reporting date?

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

The longer answer—the shorter one having failed, Senator—is this defence trade treaty was signed in 2007. As you are aware, the draft bill was released for public consultation on 15 July 2011. The bill was then introduced into the parliament on 2 November 2011 and has undergone detailed consideration by the Senate Foreign Affairs, Defence and Trade Legislation Committee. After two public hearings and considering some 31 submissions, the committee has now reported on the bill. The United States ratification process for the treaty was effected some two years ago by September 2010. And, given the significant parliamentary scrutiny and consultation, including the roundtable process which, as you know, was chaired by Australia's Chief Scientist, Professor Ian Chubb AC, it was the government's view that it was appropriate that the legislative process should be completed as quickly as practicable.

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

I will take it as a learning experience that the longer version was just as useless and pointless as the shorter version. I appreciate that greatly, Minister.

Was the bill being rushed through the committee process after spending a year or more behind the scenes being consulted on to meet the timetable for the AUSMIN meeting occurring in November? I can see the adviser shaking her head already. Can the Minister assure us that that had nothing to do at all with the visit of our alliance colleagues, secretaries Panetta and Clinton in November?

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

Yes. It is not a matter to which I have been advised, and I am not in a position to say there is any nexus between the two. I am, obviously, familiar with the political debates surrounding this legislation, and I appreciate the point that the senator is seeking to make in that political debate. But as far as this process is concerned that is not a matter that sits on my list of issues to deal with or respond to.

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

I enjoy reading between the lines of Senator Feeney's comments greatly! It is not in his set of talking points. The fact is that everybody is well aware of: this bill was being rushed through in flawed form, ambiguous form and extremely dangerous form, in my view—judging by the comments of some of the coalition senators and, indeed, Senator Feeney, by your own colleagues who are very schooled in this particular portfolio—to meet an artificial timetable of a press conference.

Presumably, Senator Feeney, you will be completely surprised when this comes up in the joint press conference that occurs in Perth next month.

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

I suppose—

Alan Ferguson (SA, Deputy-President) Share this | Link to this | Hansard source

Senator Feeney, I have not given you the call, Senator Ludlam was still on his feet. We will wait for Senator Ludlam to complete—

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

If Senator Feeney has something that he wants to add to clarify and to remove the ambiguity, I would greatly appreciate it.

Senator Feeney interjecting—

Alan Ferguson (SA, Deputy-President) Share this | Link to this | Hansard source

Senator Ludlam, have you concluded?

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

I will just speak to the amendment, because I am not certain when it is going to close out and you put the question.

I want to note that this amendment has not been properly analysed. Our parliament and legislative processes are being rushed and bypassed. The Greens will not call a division on government amendments, with one exception that we will get to a little later in the debate. But I do want the record to show the Greens objections that the Senate, its committee system and our parliament is being treated with contempt just so that the government can make its announcement when US secretaries Clinton and Panetta visit Australia in November.

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

Can I ask the minister: in the amendment—this is, of course, amendment (1) on sheet BM290—it talks of provisions not commencing within the period of two years. How is anticipated, given the provisions of section 74, that those stakeholders—researchers educational and private—will know which portions of the legislation are not in effect during the period? How are we going to convey that, given that there is a 10-year jail sentence for a breach of some of these positions? How are we going to keep a weather eye out as to when these criminal sanctions actually apply?

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

I thank the senator for his question. The government anticipates that this matter will be dealt with by a steering group of industry, research and government representatives. That steering group will be formed to review the bill's operation and implementation during the transition period of which you speak. The group will be chaired by Australia's Chief Scientist and report to the Minister for Defence and the Minister for Tertiary Education, Skills, Science and Research.

The group's final report will be tabled in parliament and may recommend further changes to the legislation and regulations. The group will consider the effect of the controls to ensure they are striking an appropriate balance between meeting Australia's international obligations and our national security requirements while not unnecessarily restricting trade, research and international collaboration or reducing the international competitiveness of the research sector.

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

Minister, I thank you for that. When will the parliament know precisely which sections will not be effective upon proclamation? How will we determine that?

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

I thank the Senate for its forbearance. I am advised that those matters are dealt with in the amendment, but government has formed the view that the amendment set out by the Australian Greens provides even further clarity on this question, and that is why government has resolved to support that particular amendment.

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

Which particular amendment are we talking about? Is it clause 2 on sheet 7297?

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

I just want to make sure I have this answer right. I am looking at clause 2, Australian Greens amendment (1) on sheet 7297.

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

Minister, could you please explain, technically, the mechanisms by which, firstly, everybody is made aware of the provisions of the Defence Trade Controls Bill 2011 that come into effect upon proclamation? Is it a gazette; is it a parliamentary statement? What is it? Then if, as you have said, the steering committee presents a final report, how is it that all of the stakeholders will know the transition period, with respect to sanctions and permits, has ended?

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

I am advised that proclamations are made when proclamations are made and that there will be the appropriate announcements and information releases to support those proclamations when they are made.

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

Minister, could you tell me what you mean by the word 'releases'? I have seen a few proclamations and they talk in broad terms of the bill. What we have is a whole host of sections within this that have an as yet undetermined commencement date. All I am looking for in this legislation is some certainty so that Australian citizens subjected to the legislation know and are deemed to know where they stand at any given time. How do they keep up with what has commenced and what has not commenced? Is there going to be a proclamation section by section?

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

I suppose the only further description I can give is that the government will engage in outreach. There will be press releases, there will be information crafted for the stakeholder groups you have described. The government will make the appropriate effort to make sure all of those persons and institutions that are required to know, or that have an interest in the matter, have access to the appropriate information.

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

So a person who is liable to a 10-year term of imprisonment for breach of these provisions will know when they take effect by virtue of a ministerial press release? Is that our position here? I need to clarify it for the record.

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

No, I refer you again to my answer. They will know by virtue of the fact that there will be an information and outreach campaign that is appropriate to this legislation, and while that will include the public utterances of the minister it is not the only mechanism for achieving that outreach.

I seek leave to withdraw amendment (1) on sheet BM290.

Leave granted.

Having withdrawn that amendment, I indicate that the government will be supporting the amendment set out in sheet 7297.

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

I move Australian Greens amendment (1) on sheet 7297:

(1) Clause 2, page 2 (table item 2), omit the table item, substitute:

It is a remarkable deflection of Senator Johnston's question that when asked how this befuddled situation will be clarified the minister then pointed the senator to an amendment hammered out with the Australian Greens. We are voting against this bill. Let me be clear: I am not happy with the form of the amendments or with the form of the bill, no matter what occurs in the committee stage. I appreciate that the minister has opened up into negotiations on good faith, and I think we have something here that is an improvement on where it was, but it is remarkable to hear the parliamentary secretary refer the opposition by way of improvement to what we have managed to put together. I am glad we did; I am still going to vote against this bill.

Greens amendment (1) on sheet 7297 provides a timetable which outlines a schedule as to when penalties would apply, so this goes towards Senator Johnston's question from before. The amendment more accurately represents the results of the roundtable discussion between Defence and the universities, and serves to make clearer what conduct the law prohibits, what conduct would constitute an offence and when penalties would begin to kick in for each. Senator Johnston is quite right to point out the alarming degree of ambiguity that was introduced in the initial drafting.

I am not necessarily convinced that this amendment completely cleans that up, by the way. This was the best we were able to achieve in the very limited time that we had. Because the government was present at the roundtable discussions—and I know this schedule more accurately represents what was decided—I understand and appreciate that the government is at least willing to support this amendment. It is worth acknowledging, because often you will see a government ploughing on, bloody-minded and not willing to acknowledge that a better way could have been found. This is one instance—and I suspect I have the coalition's support on this amendment as well—in which some ground was ceded and some negotiations were entered into. It is not perfect but it is better than it was, and I commend it to the Senate.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

The question is that Australian Greens amendment (1) on sheet 7297 be agreed to.

Question agreed to.

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

I move government amendment (2) on sheet BM290:

(2) Clause 3, page 3 (lines 7 to 11), omit:

substitute:

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

Minister, what does the government say the word 'dealings' means?

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

I am not able to assist you with that, unfortunately. That is a matter I will have to take on notice.

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

I make the point that you are creating an offence for a person who engages in 'dealings relating to goods or technology'. My obvious follow-up question, if you cannot tell me what dealings means, is: what does 'relating to' actually mean? Bear in mind, again, that these are criminal sanctions.

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

I am advised that in the context of the bill 'dealing' is the supply of technology.

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

So in order to understand 'dealings' one has to go to the word 'supply'. Why was the word 'supply' not used? How does 'dealings' take the matter any further if 'supply' is the definition of 'dealings'? You say 'arrangement for other persons to engage in dealings relating to' and 'supply relating to' is what you are saying that means. Is that correct?

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

I want to be sure I understand your question. We are talking about the supply and export of goods and technology.

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

I do not think that answers my question. Paragraph (b) of part 2 of clause 3 says 'creates offences for persons who':

(a) supply—

and we come back to the word 'supply' without a permit in a minute—

(b) arrange for other persons to engage in dealings—

You have told me that 'dealings' is the supply of technology. This means to arrange for persons to engage in the 'supply' of technology relating to goods. Why have we chosen the word 'dealings' on that basis? Why are we using the word 'dealings', which is a very vague term, a term that I do not think it is in common parlance, a term that actually complicates and unnecessarily broadens the scope of the legislation? I will come back to the words 'supply' and 'arrange' in a moment, but after we have dealt with 'dealings', I want to deal with the words 'relating to'.

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

I think you are going to questions of drafting and the precise legal implications of using particular words. Those are not matters I can assist you with at the moment. Those are matters I will have to take on notice, because that goes to the advice and in particular the legal advice that formed the foundation for the drafting process.

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

I accept that, and in line with my original commentary about dealing with what is a very complex matter, we go to the word 'arrange' in 5A. In 5A you have sought to define the word 'arranges', a plural. The clause deals with the word 'arrange', which is singular. But let's ignore that for the moment for the sake of understanding where we are going. You have sought to set up a framework that identifies brokering arrangements. I am trying to clarify where this is going on two bases: firstly, commercial, so that if there is a fee payable or a benefit then that is a brokering; secondly, if someone is doing something but is motivated by political, religious or ideological motivations. But many people arrange things because they do things by way of assistance, by way of a charitable or benevolent motivation that is almost like a voluntary help scenario that involves no money. For instance, I am thinking of a freight forwarder who simply moves something from A to B, but it is not referable directly to a fee or a commercial return. Tell me how to get around that example.

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

To use your example, the freight forwarder in that example would not be the person who had arranged or was arranging the alleged offence, and so as a consequence would not be caught by the phraseology in the bill, I am advised. Rather the target of the investigation, if I can use that phraseology, would be the person or organisation that had arranged the transaction.

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

The reason I ask these things is I am taking issue with you on that. I think that is fine, but we need to get some of these interpretive matters on the record, so that people who are adjudicating whether or not someone might have illegally arranged something know what the government is intending here. How do you define in 5A(1)(a) an 'intermediary'? What is an 'intermediary' strictly?

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

The meaning is literal. It is the intermediary between two persons or organisations that arrange the transaction.

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

Is it necessary for the intermediary to have a commercial motivation—that is, he receives a fee, a commission or benefit—or to be advancing a political, religious or ideological motivation? Are those two things necessary for the intermediary?

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

I would like to take the minister back to the word 'supply'. In one of your amendments, we come to the word 'supply', and you have changed that. Let us just deal with that as if that amendment has gone through, so I will disregard the wording in the bill but look at your amendment—I think it is (5) on sheet BM290. You say 'supply':

(a) includes supply by way of sale, exchange, gift, lease, hire or hire-purchase; and

(b) in relation to DSGL technology—includes provide access to DSGL technology.

Is the word 'access' such that there is an intent, so far as this bill goes, to provide such access? Do you envisage the word 'access' to be an active motivated action within the terms of the bill or does 'access' simply mean something that happens through lack of vigilance?

The TEMPORARY CHAIRMAN: Before I call the minister, I remind the committee that we are actually considering government amendment (2) on sheet BM290. Senator Johnston, you did jump forward to an amendment later on.

The reason I have done that is that the amendment we are dealing with now uses the word 'supply', which is subsequently changed. So I am just trying to be helpful—which is my nature—and deal with the amendment that we are dealing with but read into it the intended amendment. Maybe I should not do that and it is a bit presumptuous of me. I have advised the minister that we will be supporting that amendment, so I am trying to be helpful, which I probably should not be doing, but it is my nature.

The TEMPORARY CHAIRMAN: Senator Johnston, the committee appreciates your helpfulness, as I am sure will be reflected by the minister now.

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

I am advised, Senator Johnston, that it is your active characterisation of access that would be the government's intent, so information will be actively provided to assist persons interested in DSGL technology.

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

I will just put briefly on the record that this amendment also—as I think Senator Johnston's comments have just made very clear—was not properly analysed, because our parliament and its various legislative processes, in particular the Joint Standing Committee on Foreign Affairs, Defence and Trade committee, were prevented from looking at it. This amendment is being similarly rushed. We will not call a division until a little bit later in the session, but I do want to strongly record the Greens' objections to the way the government has handled this debate.

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 (3), (8) and (13) to (16) on sheet BM290:

(3) Clause 4, page 3 (before line 23), before the definition of Article 3(1) US Defence Article, insert:

arranges has a meaning affected by section 5A.

(8) Page 8 (after line 12), after clause 5, insert:

5A Arranging for persons to supply goods or DSGL technology

(1) For the purposes of this Act, a person (the broker) arranges for another person to supply goods or DSGL technology if:

(a) the broker acts as an agent of a person, or acts as an intermediary between 2 or more persons, in relation to the supply; and

(b) either:

  (i) the broker receives, or is to receive, any commission, fee or other benefit for so acting; or

  (ii) the broker so acts for the purpose of advancing a political, religious or ideological cause.

(2) Subsection (1) does not limit the meaning of arranges for the purposes of this Act.

(13) Clause 15, page 19 (line 2) to page 21 (line 2), omit the clause, substitute:

15 Offence—arranging supplies in relation to the Defence and Strategic Goods List

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

(a) either:

  (i) the first person arranges for another person to supply goods, where the goods are listed in the Defence and Strategic Goods List and the supply is, or is to be, from a place outside Australia to another place outside Australia; or

  (ii) the first person arranges for another person to supply DSGL technology, where the supply is, or is to be, from a place outside Australia to another place outside Australia; and

(b) either:

  (i) the first person does not hold a permit under section 16 authorising the arrangement; or

  (ii) the arrangement contravenes a condition of a permit that the first person holds under section 16.

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

Exceptions

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

(a) the first person 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 does the arranging 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 (2): see subsection 13.3(3) of the Criminal Code.

(3) 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 (3): see subsection 13.3(3) of the Criminal Code.

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

(a) the first person arranges for another person to supply goods, or to supply DSGL technology, where the supply is, or is to be, from a place in a foreign country to another place in that country; and

(b) that country is a Participating State for the purposes of the Wassenaar Arrangement.

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).

Definitions

(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.

Wassenaar Arrangement means the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies, adopted in Vienna, Austria, on 11 and 12 July 1996, as amended from time to time.

(14) Clause 16, page 21 (lines 4 to 17), omit subclause (1), substitute:

(1) A registered broker may apply to the Minister for a permit under this section to:

(a) arrange for another person to supply goods, where the goods are listed in the Defence and Strategic Goods List; or

(b) arrange for another person to supply DSGL technology.

Note: Section 66 sets out application requirements.

(15) Clause 16, page 21 (line 24), omit "technology relating to goods", substitute "DSGL technology".

(16) Clause 16, page 21 (line 33), after "if", insert ", having regard to the criteria prescribed by the regulations for the purposes of this subsection and to any other matters that the Minister considers appropriate,".

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

Just let me clarify: is this the definition of DSGL technology?

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

We are dealing with amendments to clauses (3), (8), (13) and (16) on sheet BM290.

The TEMPORARY CHAIRMAN: Just for clarification: it is (3), (8) and (13) to (16) inclusive.

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

The what?

The TEMPORARY CHAIRMAN: This is government amendments to clauses 4, 15 and 16 and after clause 5, but the amendments are actually amendments (3), (8) and (13) to (16) on sheet BM290. I understand the first part of these clauses is on page 2 of the sheet.

I do not have sheet BM290 in front of me. I seek your indulgence to get that.

The TEMPORARY CHAIRMAN: We will make one available to you. I am advised that all of these amendments relate to arrangements, if that is helpful.

Yes, that is right, but we need to clarify a few things with respect to arrangements. I will have to come back to this, if I may. I just cannot work out what we are doing here.

The TEMPORARY CHAIRMAN: I am looking to someone to give the call to while Senator Johnston is gathering his thoughts.

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

It is going to be a very brief contribution. As before, Senator Johnston should not have been put in this position; nor should his staff, for that matter. That we are analysing amendments that have been passed around the chamber shortly before we need to debate them and put them to the vote is a pretty contemptuous way of treating the Australian academic and research community quite frankly. It has put my staff through an enormous amount of stress and pressure trying to come up with ways of fixing this debacle.

These amendments should have been, could have been, investigated, analysed and scrutinised by the Senate Foreign Affairs, Defence and Trade Legislation Committee—as is its job—on which Senator Johnston sits. Again, when it comes to it, we will not be calling a division but I do record the Greens' objections to the way that this process has been handled. I look to Senator Johnston to see if he is ready to make his contribution on this amendment, otherwise we should simply put the question and move on.

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

I think clause (4) on page 5, before line 16, deals with the US Defence article, does it not? Is that what we are talking about?

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

I just want to be certain that I am following you. Are you talking about BM290, page 5? And are you talking about clause (5) there, 'A permit given by the minister may (a)…'? That the minister may give the person a permit for specified supplier?

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

It is what is in the margin here. I am looking at clause (4). We have: 'US Defence Article…' is being amended. Then, you set up a definition of Defence Strategic Goods List technology. Is that correct? Is that what we are talking about here in this particular amendment? No.

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

I am advised that this does not relate to the treaty. This relates to the strengthening of export controls.

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

It is the insertion of the definition of Defence Strategic Goods List technology, is it not?

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

I think, Senator, your interest is in clause (4) rather than clause (3), according to the schedule we are looking at.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

The committee is considering government amendments (3), (8) and (13) to (16). Whilst the shadow minister obtains some additional information I will ask if anyone else would like to make a further contribution. No?

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

I think I am getting close. Clause (4), page 3, insert the word 'arranges' before the definition of article 3(1) US Defence Article—that is correct, is it not?

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

Thank you. So we are back to the definition of 'arranges' and I make the point about 'arrange' and arranges'. You have two separate definitions there. In 5A (2), which is the definition of 'arranges', what is the reason and the motivation behind the subsection (2) that does not limit the meaning of 'arranges' for the purpose of the act. What does that mean?

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

I am advised that it is not limited by those words. It can be broader for the purposes of the act.

The TEMPORARY CHAIRMAN (13:28): The question is that government amendments (3), (8) and (13) to (16) on sheet BM290 be agreed to.

Question agreed to.

The TEMPORARY CHAIRMAN (13:28): We now move to government amendments (4) and (5) on sheet BM290.

by leave—I move:

(4) Clause 4, page 5 (before line 16), before the definition of foreign person, insert:

DSGL technology means a thing that is:

(a) technology, or software, as defined in the Defence and Strategic Goods List; and

(b) within the scope of that list.

Note: For paragraph (b), the Defence and Strategic Goods List contains exemptions relating to technology or software in the public domain and to basic scientific research.

(5) Clause 4, page 6 (lines 18 and 19), omit the definition of supply, substitute:

supply:

(a) includes supply by way of sale, exchange, gift, lease, hire or hire-purchase; and

(b) in relation to DSGL technology—includes provide access to DSGL technology.

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

Minister, with respect to (b), you have inserted a definition of DSGL technology. You have said within the scope of the list is the words you have used. Could you explain what exactly the words 'within the scope of the list' mean?

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

It is not just the items that are found in the list; the list has built into it those matters referred to in the DSGL. So it has cognisance of matters that are in the public domain and basic scientific research.

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

Could the minister provide us with an example of something that would be caught by part B but not necessarily by part A?

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

I am advised that they have to be read together.

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

Minister, when you say that there are other considerations, I note that the DSGL has exemptions. Do those exemptions carry across to the nature of technology?

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

Thanks for pointing that out, Minister—so the word 'and' means they need to be read together. Can the minister provide us with an example of something that would be caught by part B that would not necessarily be on the list itself—that is, why is part B necessary at all?

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

I am advised that it is the other way around—everything is found on the list in part A and the exemptions are found in part B.

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

I, again, put on the record—as I am going to for each of these government amendments, apart from the one that I will call a division on—that this amendment was not properly analysed and the committee was not given the opportunity to do its job. I strongly believe that this bill will be passed into law in a flawed and unworkable form that will create unnecessary and dangerous ambiguity for people with no connection and no interest in doing defence research who will nonetheless be brought within the clauses of this bill. It is a grave mistake that the chamber is making today.

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 (6), (7) and (18):

(6) Clause 5, page 7 (lines 2 to 10), omit subclause (1), substitute:

Article 3(1) US Defence Article

(1)Article 3(1) US Defence Article means goods:

(a) the initial movement of which is from a member of the United States Community to an Australian Community member, or to an Australian Community facility, for an activity referred to in Article 3(1) (a), (b), (c) or (d) of the Defense Trade Cooperation Treaty; and

(b) that are listed in Part 1 of the Defense Trade Cooperation Munitions List immediately before the start of that movement; and

(c) that are not listed in Part 2 of the Defense Trade Cooperation Munitions List immediately before the start of that movement.

(7) Clause 5, page 7 (lines 17 to 23), omit subclause (4), substitute:

Article 3(3) US Defence Article

(4) Article 3(3) US Defence Article means goods:

(a) acquired by, and delivered to, the Government of Australia as mentioned in Article 3(3) of the Defense Trade Cooperation Treaty; and

(b) that are listed in Part 1 of the Defense Trade Cooperation Munitions List at the time of that delivery; and

(c) that are not listed in Part 2 of the Defense Trade Cooperation Munitions List at the time of that delivery.

(18) Clause 36, page 56 (lines 16 to 21), omit subclause (3), substitute:

  (3) Part 1 is to contain a list of either or both of the following:

        (a) goods listed in the Defence and Strategic Goods List;

        (b) goods listed in the United States Munitions List referred to in Article 1(1) (n) of the Defense Trade Cooperation Treaty.

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

In recent times, the munitions list has been subject to change with a declared statement and departmental intent, and indeed practice, to move listed items across to the commercial list. Is there a mechanism in this legislation that accommodates the changing nature of the list?

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

Yes. I am advised that we do not copy the US list; we establish our own. As the US list is changed from time to time, we will update the Australian list.

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

How do we do that? Is it a schedule, a published gazetted schedule? What is the basis for the change?

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

It is a legislative instrument.

Question agreed to.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

We will now move to opposition amendment (1) on sheet 7296.

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

If I could be slightly cheeky, opposition amendment (1) is very similar, though it achieves its ends in a different way, to Australian Greens amendment (2), which I have a suspicion is going to fail when we put it to a vote. I wonder whether, with Senator Johnston's concurrence, I might move this amendment first then we can move onto coalition's amendment (1)?

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

No objection.

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

I move Australian Greens amendment (2) on sheet 7297:

(2) Page 9 (after line 20), at the end of Part 1, add:

9A General defence

(1) A person does not commit an offence against this Act if:

(a) a physical element of the offence exists because information was, or is to be, disclosed (whether by way of supply of the information or otherwise); and

(b) without the existence of that physical element the person would not commit the offence; and

(c) any of the following apply:

  (i) the information has already been lawfully made available to the public, or to a section of the public;

  (ii) the information has been accepted for publication and/or submitted to a reviewer for the purpose of publication or presentation at a conference;

  (iii) the information was created as a result of the conduct of open research;

  (iv) the information was, or is to be, disclosed in connection with the conduct of open research;

  (v) the information was, or is to be,disclosed during, or for the purposes of, the conduct of a course of study at a higher education institution;

  (vi) the information was, or is to be, disclosed in connection with an application for a patent.

Note: A defendant bears an evidential burden in relation to the matters in subsection (1) (see subsection 13.3(3) of the Criminal Code).

(2) For the purposes of subparagraphs (1) (c) (iii) and (iv), research is open research if:

(a) the results of the research would ordinarily be published and/or shared broadly within the scholarly community; and

(b) the conduct of the research is not subject to:

  (i) a condition that the results not be disclosed; or

  (ii) a condition that the results only be disclosed with approval.

The reason I am proposing that is that after my amendment fails, I indicate now that I will support opposition amendment (1). It does not do exactly what we were hoping it would do, and I will speak about that in a little more detail when we get to it, but it made more sense to move this one first.

The opposition's view of this amendment is one that we have looked at in detail and one that I have some sympathy for. I believe it may also be the preferred option to some of the universities and some of those who have taken an active stance in this debate. My understanding is also that it is not acceptable to the government—and I will let Senator Feeney speak for himself—because it could be interpreted as switching off the whole act for the information that is listed. The Greens amendment, therefore, tries to strike a balance and tries to hear what both the government and Defence have been saying and also what the universities are saying. Our form of words carves out the information from the offences only by creating a defence, which I acknowledge is not the approach that Senator Johnston took.

I think this has merit because it is a more precise way of carving out where the offences are and where they are not, and we recognise that, by saying the whole act does not apply to the listed information, it is actually quite unclear what this means for the provisions—for example, in parts 5, 6 and 8 of the bill—other than that the offence provisions also operate in relation to information. I think the government feels that some of what is covered in our amendment is already covered in other parts of the bill and also that aspects of what we have proposed undermine the intent of the bill. The government has therefore proposed a statement of principle to supplement this, which goes some way towards allaying some concerns.

I say that the Australian Greens amendment did propose an effective balance between what I think everybody is trying to achieve here, which is simply the removal of the ambiguity that we have been speaking of all morning. So, without a great deal of hope unless there has been a late change of heart, I commend this amendment to the chamber.

Question negatived.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

We will now go back to opposition amendment No. 1 on sheet 7296.

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

I might take this as an appropriate juncture to set out the government's position with regard to this opposition amendment. I can confirm that the government will not be supporting this particular amendment. The government's position is that the effect of the proposed amendment would be to exempt anybody claiming to be conducting research from the entire bill. This is a far broader effect than the US exception for fundamental research, and this is because Australia and the US have different legal and defence export arrangements. This type of exception is not required in Australia, because the bill does not contain any provisions which seek to regulate the outcomes of research. This amendment would undermine the basic intent of the legislation, which the government asserts is to control the intangible supply of technology related goods listed in the DSGL.

This amendment would allow anybody who claims to be conducting research complete freedom to send any information anywhere in the world. This includes how to manufacture and use sensitive equipment such as a mass spectrometer for a nuclear weapons laboratory and how to produce chemicals such as oxalyl chloride, required for chemical weapons. Apologies for any pronunciation errors there; my chemistry teacher will not be surprised!

Under existing legislation—Customs Act 1901—all of these goods would require permits if tangibly exported from Australia today. The controls on intangible exports in the proposed legislation simply mean that the same goods cannot be virtually exported by giving information to a person overseas so they can make the same goods. The inclusion of such a broad loophole in Australia's legislation would fundamentally undermine the capacity of the bill to strengthen Australia's export controls relating to intangible technology. This would not meet the intent of Australia's commitment to the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies, a commitment made in 2006 under the Howard government. Such a broad loophole would not meet the treaty ratification requirements, and the treaty could not be ratified.

The inclusion of a fundamental research exception was raised during the consultation process. This 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 recognise that some research might involve the transfer of sensitive technology and that that should not be exempt from legislation. The agreed outcomes instead propose 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 Australian 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, and there will be an opportunity to amend the legislation based on the steering group report.

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

I move opposition amendment (1) on sheet 7296:

(1) Page 9 (after line 20), at the end of Part 1, add:

9A Exclusion for research, education and information in the public domain

This Act does not apply to the following:

(a) information in the public domain;

(b) information that has been, or is intended to be, published in any publication available to members of the public;

(c) fundamental research, which is basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly in the scientific community (such research is to be distinguished from proprietary research and from industrial development, design, production and product utilisation, the results of which ordinarily are restricted for proprietary reasons or subject to other access and dissemination controls);

(d) educational information or instruction provided in courses by a higher education provider;

(e) information that is the minimum necessary information for patent applications.

In so moving the amendment I want to speak to it and say that all of this legislation does turn on some of these points.

What is the opposition seeking to do here? There are not many who have an interest in this subject matter, but those that do know that one of the abiding tenets that we wish to protect is that our competitive position in so far as research is concerned is not undermined in comparison to other countries of a similar capacity in Europe or North America. So we should not impose a burden, particularly on Australian universities, which are the essential and majority players in the research space in Australia, that other countries and other institutions within those countries are not subject to. In looking at this amendment we were conscious of the export administration regulations, particularly in the United States, and other provisions that relate from the International Traffic in Arms Regulations and other matters that bear upon the controls of research in United States institutions.

The waters are muddy, but there is an irresistible conclusion that the US, whilst there are controls, do not and will not have as strict a regime as the regime these measures, which we are legislating here and now, will impose upon their research institutions. That is a matter for the government. I want to hear and I want to see the government say that that is not so, but, inevitably, this amendment talks about exclusions for research, education and information in the public domain and says that the act does not apply to:

(a) information in the public domain;

(b) information that has been, or is intended to be, published in any publication available to members of the public;

(c) fundamental research, which is basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly in the scientific community (such research is to be distinguished from proprietary research and from industrial development, design, production and product utilisation, the results of which ordinarily are restricted for proprietary reasons or subject to other access and dissemination controls);

(d) educational information or instruction provided in courses by a higher education provider;

(e) information that is the minimum necessary information for patent applications.

We think these provisions are a little bit of motherhood but are such that the intent of the act is protected, yet we retain the flexibility within research institutions such that the research that they do that does not impact upon the export or the control of defence related exports is preserved. This is probably the most contentious part of the legislation. The committee had a lot to say about this, and I think it is important that we put this on the record so that everybody knows what we are talking about in terms of this amendment and what we are talking about in terms of long-term oversight of research in Australia from the perspective of Wassenaar and other conventions and treaties controlling the export of DSGL technology, services, munitions lists, goods et cetera. I commend this amendment to the Senate.

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

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

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

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

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

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

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

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

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

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

I do not know whether Senator Johnston has anything to add in response to that, but I indicate at this point that the Greens will be supporting this amendment. I have given the opposition a pretty hard time on enabling the government to carry forward some of the procedural obscenities that accompanied this bill, but I will acknowledge the coalition for bringing this amendment forward. As I said in my earlier remarks, it is not the way that the Australian Greens amendment chose to deal with this issue. But it is a substantive amendment. It is also an attempt at a substantive fix, and I think the opposition should be congratulated for bringing it forward.

I would be very interested to get Senator Feeney's read on what will happen if this passes the House and actually becomes law. I think it certainly marks a major improvement on the drafting of the bill as it stands. I wish the Australian Greens amendment had carried, but, nonetheless, I am very happy to support the opposition's drafting.

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

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

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

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

…   …   …

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

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

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

underline 'fundamental research'—

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

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

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

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

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

(b)   University based research

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

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

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

(1) Through sales at newsstands and bookstores;

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

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

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

(5) Through patents available at any patent office;

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

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

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

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