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Monday, 29 October 2012
Page: 8138


Senator RHIANNON (New South Wales) (11:51): I rise to support the comments of my colleague Senator Scott Ludlam, who set out a very clear case of why the Defence Trade Controls Bill 2011 and the Customs Amendment (Military End-Use) Bill 2011 should not be supported. We should not be supporting these bills because the government is rushing through flawed legislation that has such far-reaching consequences for Australian research, innovation and trade. Most worryingly is that this legislation is designed to facilitate the arms trade. At every turn the government has shown disturbing haste. It has been unwilling to allow the Senate committee process to do its job. We have here legislation that restricts Australian research and that has wide implications, particularly in light of the government's own commitment that Australia must develop as an innovative nation. We should be asking: how can Australia become an innovative nation if research is shackled and, under some circumstances, academics could actually face jail?

It is worth remembering that we are debating this in the context of the release of the government's white paper on the Asian century. It is widely recognised that education and research will be critical to Australia adjusting to the Asian century but with this bill we are sending a clear message that research can be compromised and ideas controlled. That is the essence of much of the legislation that we have before us. Professor Jill Trewhella, Deputy Vice-Chancellor (Research) at the University of Sydney, has described this bill as:

… a potentially stifling export control regime for 'intangible transfers' (including electronic communication and publication) of technology that will impact a broad range of what would ordinarily be open research …

This bill has far-reaching implications for the standing of Australian universities as independent research institutions and the relationship of our universities with executive government. The Greens acknowledge that academics share responsibility with government to limit the transfer of certain technologies where there are legitimate risks to national security. That is not under challenge. The issue is that the Labor government is pushing through legislation that puts more constraints on researchers in Australia with respect to a restrictive export control regime compared to researchers in the United States.

It was interesting how Senator Ian Macdonald picked up on the very important point of Senator Scott Ludlam about the timing of this legislation and how it is very much designed to be one of those announceables—a word that is quite offensive to many; I certainly acknowledge that but it seems that often the government is looking for something that the PR people can get their teeth into. With the visit of leading US representatives to Australia clearly that is in mind. That is very relevant to this debate.

At this point I think it is worth noting the comments from the National Tertiary Education Industry Union, which has been representing its members very thoroughly because so many of those members have expressed deep concern about the implications of this bill for their very work. The National Tertiary Education Industry Union, in a letter to the Minister for Defence on 16 October, stated:

… we are alarmed by the Government's late inclusion, without consultation with our members or other affected stakeholders, of an amendment that if passed into law would create a criminal offence for the publication of certain material related to dual use technologies.

In Australia what we can see is that the defence department are tightening their proposed regulatory net to such a degree that it captures much research where the risk is low. Now we see that Defence wants to go further and so late in the development of this bill Defence has put up an amendment that could make publication in some circumstances a criminal offence. It really is quite extraordinary that it has got to that point. It was not necessary, as Senator Ludlam and other speakers have set out. We have a committee process. We could have ironed out these problems. We have this very serious problem whereby a law that Labor wants this parliament to pass could result in academics facing up to 10 years in jail. So I think it is very important that senators carefully note the points put forward by the National Tertiary Education Industry Union.

In the US researchers in accredited higher education institutions enjoy broad exclusions from export controls, under the relevant export administration regulation and the international trafficking in arms regulations, for fundamental basic and applied research in science and engineering that is ordinarily published and shared with the scientific community. So what we have is some very important information that I think it is important that we note, that in other countries, as well as in the US, these issues have been ironed out. In Britain we have export controls over dual use technologies and they do not lie with the defence department. In the US the Department of Commerce and the Department of State handle them. In Britain it is done by the department of trade and innovation. It is certainly a much healthier way to handle these challenges.

Also, I want to pick up some important work that was being taken up when this issue was debated in England. Professor Trewhella details this in an important speech that she gave on 26 October to the Australian Society of University Lawyers. She covered some of the work that was undertaken by Baroness Miller of Hendon when this issue came before the House of Lords. They were looking at the export controls on intangibles relating to controlled technology. I would like to share this quote with senators because it really goes to the heart of this most important aspect of one of the biggest challenges that I see in this bill, which is the attempt to control intellectual property. Baroness Miller states:

The extension of the control of export of goods to the control of intangibles—the control of thoughts and ideas—is a radical step, unheard of in a democracy. It has serious constitutional implications. Goods are exported if they are physically moved out of the country. It is physically impossible to control ideas. But that is what the Government are trying to do. By virtue of Clause 2(2)(c), they are even attempting to control the exchange of ideas within the United Kingdom. It is for that reason that a solid body of academia is totally opposed to some of the Government's proposed provisions, which are inappropriate in a country where universities have been centres of learning, research and discovery for over 900 years.

Significantly, as a result of the work of Baroness Miller and those people who she was associated with, and a number of the academics who were taking up this issue, a new section was put into the British Export Control Act that did provide protection for certain freedoms. They particularly picked up on the need for the communication of information in the ordinary course of scientific research and the making of information generally available to the public, that that needed to be respected and protected. Again I think that is important. It looked for a period there that Britain were going down a path similar to what is facing us here. But after extensive debate within parliament and within the wider community these important points were recognised and were picked up in the legislation.

I certainly commend the work of Senator Ludlam, who is bringing forward a set of amendments that could really knock the rough pieces of this legislation. The legislation in that form certainly should not be supported. The setback in terms of the research that is carried out in this country would indeed be enormous but in turn the message that sends the rest of the world when we are at a stage in our own development that we are attempting to showcase our higher education institutions to the world, particularly in our own region of Asia, would be seriously compromised by this damaging legislation.