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Thursday, 11 October 2012
Page: 7984


Senator LUDLAM (Western Australia) (12:31): I move:

That the following matter be referred to the Foreign Affairs, Defence and Trade Legislation Committee for inquiry and report by 31 October 2012:

Any proposed government amendments in relation to the Defence Trade Controls Bill 2011.

I will briefly describe to the chamber why I have not sought to have this motion proceed as a procedural blip during Discovery of Formal Business but instead to describe exactly what is going on here and at least to call particularly on the opposition, if the government is steadfast in its determination to ram this bill through, to be as good as the word of the opposition senators who co-signed yesterday—not that long ago—with the Australian Greens a dissenting report urging the government to think again.

This is not a bill that the parliament will necessarily block. In fact it has been through the House of Representatives and it has been through the Joint Standing Committee on Treaties; there is quite a bit of history behind this bill, as I will describe. We have hit a very, very serious hurdle in the Senate Standing Committee on Foreign Affairs, Defence and Trade, with one of the most strongly worded committee reports you will ever see come out of this place putting up the red flag—not an orange light—and saying, 'Do not proceed. This bill is not ready to go yet.'

As recently as yesterday we had 10 pages of amendments from the government, clearly crafted in a rush. They are complex and they are confusing; in some instances I suspect that they are probably contradictory. My business of the Senate motion sought to refer those amendments back to the Foreign Affairs, Defence and Trade committee, as I thought we had an agreement to do. Let me just describe briefly what the bill does and why we are raising a red flag here and believe that this matter needs much more debate before it is blasted through this chamber.

The motion is before the Senate because the Defence Trade Controls Bill 2011 is a flawed and controversial bill. The Senate Foreign Affairs, Defence and Trade Committee was rushed to report yesterday, a full 20 days before it was due to do so. You know that something is up when a committee that has been instructed by the Senate to report by 31 October suddenly and mysteriously is demanded to report 20 days earlier. You know that some kind of fix is in.

A dissenting report has been co-signed by me and Senators Eggleston, Johnston—who, regrettably, is not here to explain the coalition's position, but I trust and hope that Senator Kroger will do that for us—and Fawcett, recommending that the amendments circulated at a very late stage be sent back to the Foreign Affairs, Defence and Trade Committee. This chamber deserves a much more thorough explanation of why this matters and why it makes sense to get this right. The motion actions the recommendations so that obvious problems can be fixed properly, as the Senate committee system is designed to do. It is such an important mechanism that we have, we should not treat it with the contempt that it is being treated with today.

Some months ago the committee sent the Department of Defence away to consult, as it should have done in the first place. At that time the committee described the bill as 'a work in progress'. That was not the dissenting view, that was the unanimous view of the Defence committee. It is still a work in progress, I submit that as evidence we do not need to look too much further than this hasty scramble of amendments that has been dropped on the table and circulated yesterday. It is still a work in progress.

It has received some media attention, and now, I submit, it is going to receive a great deal more. There is a lot of opposition to this bill. In my view, and in the view of the stakeholders that I have been in contact with, it is being rushed through so that there can be a media sound bite for the visit of US Secretary of State Clinton and Secretary of Defence Panetta to Australia next month: 'There is the photo opportunity! We have signed this fantastic collaborative effort between Australian and US defence research institutions.' The consequences are deep and profound.

Legislation of this gravity should not be turned into a media sound bite, and the Australian Senate's committee process should not be treated with contempt and forced to report three weeks early just for a press conference. If that is not the reason this is happening then Senator Feeney, who has long association with these issues and a deep understanding of defence policy in Australia, can assure us otherwise. But I think that it is what is going on. This is just for a photo opportunity. It is an announceable, so that the government can announce that we have deepened defence research ties with the United States.

That approach may in fact bite back, as sound bites sometimes do, as the provisions of this bill will bite if they are not fixed by this chamber. We need to do our jobs and we need time to do that. The bill implements a Bush-Howard era treaty between Australia and the United States. It is similar in effect to a US-UK arrangement of the same era that seeks to increase interoperability through administratively and practically easing the two-way trade of weapons in defence technology.

There is a lot to dislike about this bill, but there are aspects of it that I think are important and necessary. The Greens will obviously need to form a voting intention when we have had time to read the amendments that were circulated yesterday. Stakeholders, particularly the universities and research institutions of this country, are not saying, 'Stop,' they are saying, 'Wait. Hold on; there is the possibility here to fix this—to negotiate, to compromise and to come to a solution that suits everybody—the defence research community, the Australian civilian research community and, perhaps—quietly, in the background—the United States government. There is a way to bring everybody together.'

But this bill has been in the making for some time—as I said earlier, since 2007. It was the subject of a Joint Standing Committee on Treaties inquiry in 2008, but the bill, for some reason, was not introduced into the House of Representatives until November 2011 and then it was referred to the Senate. That is nearly a year ago. What is the hurry? Why has this suddenly had the accelerator stomped on?

The bill is complex because it removes restrictions on certain defence exports between the US and Australia through the creation of an approved community comprising industry, particular institutes or facilities, government agencies and research or education institutions that are approved, dispensing with the need for the usual export licences required for each item.

I can see the purpose. I can see the reason why you would want to do that: to streamline the way that these agreements occur so that they are not continually being forced through case-by-case paperwork. I understand the premise. It requires controls for a specified Defence and Strategic Goods List, the DSGL, and related goods and technology. This list is 380 pages long; it is the size of a phone book. This is not some trivial document.

It also creates a registration and permit regime for brokering in those goods and services that find their way onto that list. It obviously introduces a number of other amendments, implementing commitments that Australia has undertaken under the Wassenaar arrangement on transfers of technology by intangible means such as word of mouth, email, faxes and other electronic means. Again, you can understand the underlying principle there, because some of the context of that Wassenaar agreement relates to proliferation and expansion of nuclear weapons capability where defence ties and ties between research institutions can lead to the proliferation of nuclear weapons technology, even in terms of informal phone calls, chats, emails and so on. So we can see the principle behind that arrangement as well. But this last aspect, if it is applied not just to nuclear weapons related research but our entire research endeavour in Australia, is going to cause massive problems, and that is what the universities are telling us.

The academic community have been in negotiation with Defence, because Defence did not conduct consultations properly—the unanimous finding of the Senate committee was that that was the case. The consultations have been held when the university community have not had amendments in front of them to examine. There is a process underway, I submit to the chamber, where the government is just waving its hands and saying, 'No, we fixed this; it's all fine; let's just quickly knock it through,' while the most important research institutes and academies in Australia are saying this is really, really problematic.

So the committee has not had amendments in front of it to examine, and I thought we had an agreement with coalition senators to give the Foreign Affairs, Defence and Trade Legislation Committee a couple of weeks—we were not necessarily proposing to block the bill or prevent it from occurring—to report when we get back in November so that the chamber can have a considered response. It is my view that, if that process is allowed to occur, the Australian Greens may still not like the bill and some of its underlying premises, but I think you will be able to get all the stakeholders on board. You will be able to get the universities on board if you give it time, but this process will be required to run its course. That means referring the amendments back to the committee so that they can be analysed.

Yesterday the Deputy Vice-Chancellor at the University of Sydney had a piece in the Melbourne Age that outlines why this is a problem, and I am going to quote from this briefly:

When our politicians line up for pictures with the US Secretary of State, Hillary Clinton, during her visit next month few Australians will be aware of the potential cost of that photo opportunity.

With each handshake our research enterprise—Australia's engine of innovation—will be strangled. Our researchers may have lost their ability to freely conduct public-good research and communicate research results—simply because legislation important to the US-Australia defence trade was rushed before Clinton's visit, rather than considered with enough time to find a solution to protect against its unintended consequences.

This is strong language but also, as I indicated before, a willingness to find a way forward. I quote again:

This legislation could mean a conference speech, publication of a scientific paper or sending an email to colleagues could require a Defence permit or become a serious crime.

That is what we are dealing with here, not only in defence research but in any research that Defence might find it has an interest in. That is the terrain that we have stumbled into here, and that is why the universities are saying: 'Wrong way. Go back. Do not pass the legislation in the form that it currently sits in.' The Deputy Vice-Chancellor goes on:

What is scary is that because few Australians are engaged with this complex, technical legislation—let's face it, anything called the Defence Trade Control Bill will not make the six o'clock news—

well, let us see if we can shake up that assumption—

this was able to happen. What is maddening is that in our rush, Australia will potentially not have legislated comparable safeguards to protect public-good research that Americans have.

So this is an agreement on defence research collaboration with the United States that is going to place more onerous restrictions on the Australian research community than it does on the United States. Why is that? Are we a security risk? Is it because we are in the Asia-Pacific and we have friendly diplomatic and research relationships with China? Is that what is going on here? It is absolutely unbelievable. She goes on:

New controls on intangible transfers mean research activities that could result in the communication of information regarding the development, use or production of a broad range of technologies used in ordinary research would require review by, and permission from, the Department of Defence. The bill could even criminalise publication of data or information relating to these technologies.

This is likely to restrict researchers from communicating critical information to scientists abroad to prevent pandemic flu outbreaks. It would impede top scientists in developing technologies for tomorrow's high-tech manufacturing industries, new vaccines and potential cures for cancer. The Australian government worries about a brain drain in advanced technology, but is poised to pass legislation that could force our best and brightest offshore.

US researchers in accredited higher education institutions enjoy broad exclusions from export control relating to intangible transfers of dual-use technology for basic or applied research.

However, Defence will impose far more restrictive controls on researchers, disadvantaging them compared with their US peers, especially given the relative importance of international collaboration to Australia.

Yes, we are an island continent, but in fact our research endeavour is globally linked, and so it should be. We have some of the best researchers and academic institutions on the planet, and it is profoundly important to us that we are able to share that work, as has been an important part of the scientific method for several hundred years, with experts, researchers and academics in other parts of the world. It is central to the work of the scientific community. She goes on:

Consider a renowned University of Sydney physicist, whose quantum technology research, with applications for computing and development of green-energy sector materials, is not excluded from proposed regulations. He estimates 20 per cent of the equipment he purchases and uses in experiments will be affected and he might spend a quarter of his research time reviewing, assessing, seeking legal advice, applying for, or waiting for, permits. Stay in Australia? This burden just might force him to return to the US—

where he would be free to carry out that kind of research unimpeded by the military. I can understand, as I said before, why you would apply those kinds of really serious restrictions and safeguards on somebody working on uranium enrichment technology, for example. I completely get it, and I support it. But this is about any research application that Defence might have a present or future use for: 'Oh, physics? The military's interested in physics. Oh, chemistry? The military's interested in chemistry'—or any future applications of very broad research agendas going on in Australian universities. 'There might be future military applications for that. You'd better sign this agreement. Oh, you sent that email to a research colleague of yours in Beijing? We'll see you in court.' Why on earth would we contemplate this? This is not a drafting error; it has been written to work that way.

I am deeply interested, and I hope we get some response from the coalition on this, in what they propose to do with this amendment. I would be the first to acknowledge that I have not read the amendments that we have seen yesterday. I do not know what they do or whether they fix the bill. The university community are saying, 'Just give us time to read them.

Recognising also that not a great deal of government business is debated on Thursdays, I am not suggesting that the government is proposing—as far as I am aware—to debate and pass the bill today. They are proposing to debate and pass the bill, I presume, as soon as possible in time for this photo opportunity with the US secretaries. I say: give us the opportunity to put these amendments back to the committee so that it can do its job. Submissions made just last week and the legal advice attached to them— (Time expired)