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Monday, 29 October 2012
Page: 8119


Senator LUDLAM (Western Australia) (10:23): I also rise to make a contribution on the Defence Trade Controls Bill 2011. It is interesting to hear Senator Johnston's comments and realise, as I thought I might, that I agree with much of his critique of the way that this bill has been handled by the minister's office and by the Department of Defence. Yet, on the procedural issues, I cannot help thinking that these were things that Senator Johnston could have done quite a bit about. There is not a lot of point whingeing about how the committee was not given time to analyse the amendments, how consultation was rushed and how the committee was forced to report 20 days early—and you know that some kind of fix is in when that is going on—when they were all things that the coalition could have done something about. They did not, and that is quite telling.

This legislation does implement a Bush-Howard treaty between Australia and the United States which seeks, in part, to increase interoperability through administratively and practically using the two-way trade of weapons and defence technology and research. At the outset, before we go into the detailed provisions of the bill and why it has caused so much concern in our academic and research communities, I think it is worth going into what this bill is actually about.

SIPRI says that defence spending in 2011, the last year for which we have accurate numbers, was about $1.74 trillion per year. So in the time that it would take to read a 20-minute speech the world will spend $66 million on weaponry and on defence technology. That, in part, is what this bill is seeking to enable. The Greens will not be supporting this legislation, for many of the reasons that Senator Johnston just outlined and yet the coalition has seen fit not merely to support the bill but to enable it. On some of the substantive provisions, I suspect we will find agreement when it comes to the committee stage. I thank everybody, particularly in the opposition and in the minister's office, for scrambling over the last couple of days to try and fix the mess that has been handed to them. I would also like to add my comments thanking the staff of the Senate Foreign Affairs, Defence and Trade Committee for having been handed a mess and having handled it—and it did not have to be this way. Nonetheless they have worked through the issues with the usual diligence and care.

Both the underlying treat and this bill facilitate the weapons trade. The treaty and this bill make the collaboration between those creating, selling and buying weapons of war easier. Let us not airbrush out and push that under the table. We would oppose this bill therefore no matter which country Australia was proposing to do this with because we do not wish the arms trade to be easier or to be enhanced or to be smoother or to be more interoperable. We question the human and economic resources going into war and the preparation for war, the narrow, stunted vision of security and human security that underlies the idea that as long as we prepare for war we will be secure. Take issues around climate change, food insecurity, water scarcity, HIV/AIDS, natural disasters. None of these genuine human security issues are remotely improved by defence spending. It is quite the reverse.

The bill removes restrictions on certain defence exports between the US and Australia through the creation of an 'approved community' comprising industry, particular facilities, government agencies and research and educational institutions that are approved, which will dispense with the need for the usual export licences required for these items. So at the outset it is acknowledging the streamlining of paperwork and the reduction of red tape that is clearly underlined here. It also, however, requires controls for a specified defence and strategic goods list, or DSGL, and related goods and technology. This list is some 380 pages long. The bill sets up a registration and permit regime for brokering in these goods and services. These are commitments, as Senator Johnston outlined, that Australia has already undertaken under the Wassenaar arrangement on transfers of technology by 'intangible means', such as word of mouth, email, faxes and other electronic means. Lastly, the Defence Export Control Office is to administer the permit regime without the benefit, as I would note, of any resident scientific expertise.

We understand why this arrangement exists. We are staunchly supportive of disarmament and non-proliferation regimes globally, unlike the government—quite cheerfully led on by the opposition—which has recently made a direct assault on the nuclear non-proliferation and disarmament regimes by proposing to sell uranium to a country that stands outside the NPT. However, the Wassenaar arrangement and the Defence Trade Control List exist to stop information and technology being weaponised. That is an objective that we strongly support. That is an important goal and there are good reasons to pursue it diligently. But this is precisely where this bill has faced such serious questions from our academic community, being very significant academic institutions and researchers who have contacted my office. No doubt they have been in touch with the minister and they have been in touch with the opposition to very clearly state that, while they are committed to the goal of not seeing these technologies and ideas and research concepts weaponised, this legislation nonetheless has massive impacts on and really serious implications for free research, open intellectual inquiry and publishing.

In the 4½ years that I have been a member of the Senate Foreign Affairs, Defence and Trade Committee, I have found it to be usually very measured and very fair in its language and recommendations. This is a diligent committee that takes its work very seriously. On this bill, the committee issued two very strongly worded reports—in fact, with some of the strongest language you will ever see in a Senate committee report—making it very clear the grievous errors in execution and in the proposition behind the bill, given the oversights and deficiencies in consultation. It put some propositions effectively for buying more time, because most people believed that the bill could be fixed given time.

The committee sent the bill back to Defence, told them to do their homework, listen to what the universities were trying to tell them and come back to the Senate when the bill was no longer a work in progress. The fact is that there are amendments being finalised this morning. That is the degree to which this bill is still a work in progress. In his opening remarks to the debate on the second reading of the bill, Senator Johnston alluded to the fact that he is still waiting to hear whether there will be changes to government amendments and is giving them conditional opposition support. This bill is still a work in progress. There are still discussions going on behind the scenes, I gather, from Senator Johnston's comments, about the precise shape and form of government amendments. That is remarkable. That is an abuse of process. It is certainly an abuse of the committee system that we are sent from all over the country to participate in to make sure that these kinds of things do not happen.

Why exactly is it that we are rushing today? Why are we tying ourselves in knots, given that this bill, without a huge amount of debate, passed the House of Representatives last November? Why are we proposing to have these long-lasting and potentially very retrograde measures passed into law? We know why. It is because the United States Secretary of State, Hillary Clinton, is coming to Australia. The US Defense Secretary, Leon Panetta, is also coming to Australia for AUSMIN talks later this year. That is all this is about—a photo opportunity. It is about an 'announcable'. This is 'hollowmen' stuff, and for that we are rushing a very, very important bill against the express objections of the people who will be directly affected by it. Our proper parliamentary process and the hard fought for mechanisms for ensuring scrutiny of bills and getting complex legislation right are just being kicked aside for a photo opportunity and a sound bite. It is a disgrace.

The Foreign Affairs, Defence and Trade Committee did not get to look at the pages of government amendments that were tabled right after the committee had reported. As senators will know, the opposition saw merit in the idea of the committee having an opportunity to verify whether the consultation process that was belatedly undertaken actually delivered the goods in the form of amendments that gave shape to the concerns that people were raising. I signed, with Senator Johnston and two of his coalition colleagues, a dissenting paper outlining that very recommendation, and then 24 hours later the coalition were nowhere to be seen. They gave fiery speeches but voted with the government to ensure that that committee reference did not get through. I wonder whose arm got twisted and by whom overnight between that decision being turned from black to white. I think I can guess.

The facts are that academics emphasised their understanding that national security questions arise with some research. This is not controversial. Academics have also worked hard during the roundtable discussions to explain their concerns clearly and to achieve a set of agreements and a transition process to test the regime. They did this without being able to see the proposed changes in law. People participating in those roundtables were working in the dark. The academics who are in the public debate remain very concerned that they are being subjected to a broader and more stringent and onerous regime than their counterparts in the United States, and they have provided legal advice to substantiate this claim. The universities are seeking exclusions from the regime for low-risk research and are seeking equivalents with their United States counterparts. You would have thought that was not too much to ask.

The universities are also very concerned that the relationship between executive government and Australian universities as independent educational and research institutions is being directly compromised with this bill, particularly in an entirely new aspect to do with publication that was thrown on the table. So some of the amendments may have made things worse. We will have to shoot that out in the committee stage this afternoon, because the Foreign Affairs, Defence and Trade Committee was not able to make that assessment itself.

Not only have we not had time to test the government amendments; but the report for the bill was brought forward by 20 days. The Vice-Chancellor of the University of Sydney stated it this way in a recent piece in the Melbourne Age:

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.

That is what with we are up against here. That is why people are shouting so loudly: the criminalisation of research and having to tug on the sleeve of the Minister for Defence before you can publish your research.

We do not believe—the government clearly does, although they appear to still be scrambling for the precise form of words—that the amendments or the parent bill craft these exclusions or these offences anywhere nearly enough tightly enough. And we are being given a two-year cooling off period to see if it works. Why would you embed these disastrous provisions in law and give yourself two years to work out how badly they have gone when, with another couple of weeks, these things could have been fixed in the first place. So I share the vice chancellor's concerns about the new offence around publication or other dissemination of technology on the DSGL to the public or to sectors of the public by electronic or other means. That was not even in the original bill. As I have said previously, we are concerned about the chilling impact that this may have.

I cannot stress enough the Greens want to see restrictions on research that is about dual use and weapons-related technology, and again I stress that the academics that we deal with, that we have come into contact with during the course of this bill, want that as well. Things like Silex, for example, which was cheerled by the Australian government, has laser enrichment technology for uranium that clearly deals with the very definition of dual use. That is the kind of technology we are talking about here. But it is entirely likely that some of the agreed outcomes of the roundtable discussions that the committee demanded occur have not been fully implemented in the amendments or the process, and it has been so rushed that it is actually very difficult to tell.

The exclusions from the regulatory net that the sector was concerned to achieve for applied research and information that is ordinarily published and shared with the scientific community is not contained in the government's amendments. Discussions with Defence had originally led to consideration of filters to exclude lower risk categories of research and limitation to particularly sensitive technologies of the DSGL, which we quite clearly could have lived with. But it is not clear at all why lower risk education and research activities should at any time be caught up in legislation such as this. The independent legal advice from the DC law firm White and Case was that the US exclusions, among other things, extended to fundamental research. It is also clear from various major university websites in the United States and advice provided to researchers at those institutions that both basic and applied research are excluded from the scope of the regime in the United States. We want to ensure that the Australian control regime is not broader in scope or more stringent than the arrangements in place for fundamental research with our colleagues at accredited institutions in the United States.

Our committee describes the universities' position as 'fair and reasonable' in paragraph 2.16. The committee supported the view that Australian legislation should not impose heavier burdens and suggested that the government be guided by this principle when drafting amendments to the bill. The government will presumably try to make this case, but their amendments do not satisfy this basic fair and reasonable requirement and that is why we have taken to drafting some language for consideration by the chamber.

The defence minister wrote to the committee on 13 September and made several pages of undertakings. I note that at least five of the commitments made by the minister on the second page of his letter have not been satisfied by the amendments provided. The principle that all researchers operating under federal or state jurisdiction are subject to the same export control regulations are not embodied in the amendments circulated. The compliance and regulatory regime is not refocused from individuals and research groups to the organisational level. Permits have not been granted for specific research programs and projects for extended periods. And the proposed obligations to apply for permits for publication have not been replaced with an offence provision that applies to individuals if they wilfully release controlled information into the public domain. These were things—commitments and undertakings—from the minister's office that were pretty well regarded. Given a bit more time, I believe they could have been incorporated into the bill.

The previous provisions drafted that supplies of restricted goods were centred on the activities of Australians with foreigners, and there is now a new provision for an offence for the suppliers for the provision of access to DSGL technology. In this regard, the addendum to the explanatory memorandum continues to explain that intangible transfers of technology include:

… a person explaining to someone overseas how to make or use controlled items, sending conference presentations overseas where the presentation content communicates controlled technology, or, access technology from a server or virtual private network.

The other offence provisions for controls relating to defence services have been deleted from the amendments, but it should be noted that the definition of technology, as it appears in the DSGL, and is defined in the amendments, still includes the following: 'specific information necessary for the development production or use of a product. The information takes the form of technical data or technical assistance'.

What is needed with this bill is to proceed with enormous care to get an effective regime. Several matters, I believe, remain outstanding. We are effectively paving the way for a train wreck between Defence and our academic institutions and, as so often happens through this place, the government will not be able to say that it was not warned. Having forced this consultation to take place—when it was entirely neglected—we are now potentially setting in concrete something that is disputed and contested as unworkable, and it will not be much comfort to people who are still here in two years time to come back and say, 'We told you so.'

So the Greens will have a series of amendments that I will speak to in a little bit more detail in the committee stage, and we will also offer some comment on the coalition and government amendments as they are circulated. But I just offer one final thought: in the time that it has taken me to deliver this address to the chamber, the world spent $66 million on weapons, on arms, on research and on so-called defence and security, at complete odds with and in complete defiance of the genuine security threats that the world faces in the 21st century. So it gives me no pleasure at all to be debating this bill today when we are denied a little more time for some work on the part of the committee that has applied itself—and it is good to see the chair in the chamber now—with great diligence over this bill, and it is suddenly kicked aside to meet a completely artificial timetable for a press conference with our US colleagues. This could have been very, very different and it could have been a good news story, and the government has instead turned it into a shambles. Since Senator Johnston enabled this shambles to occur, it is difficult to take his comments seriously when, after all he says and all the huffing and puffing and condemnation of how appallingly the government has behaved, he is going to vote for the damned thing. He voted for the procedure that allowed this to occur in the first place, and then he is going to vote for the bill.