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Monday, 29 October 2012
Page: 8147

Senator XENOPHON (South Australia) (12:30): Like many of my colleagues, I have serious and significant concerns about the Defence Trade Controls Bill 2011, particularly in relation to process. I believe that one of the most important things we need to be aware of when voting on legislation is unintended consequences. As a parliament, we have multiple steps in place to make sure bills are thoroughly examined and tested before they pass. These include exposure drafts and consultation, Senate and House committee inquiries and the committee of the whole stage in this chamber. These processes and procedures are there for a reason, and there is no reason—not deadlines, dates or promises made to others—why these steps should be limited or avoided. Generally these procedures are fairly flexible.

My colleagues in this place are usually accommodating when there is a specific reason to push legislation through, providing the bill has been subject to appropriate scrutiny. You need to look at the context of and the consequences of a particular bill. But the circumstances surrounding these bills are nothing short of laughable. The Senate Standing Legislation Committee on Foreign Affairs, Defence and Trade were so concerned about the serious problems with lack of consultation during the drafting of these bills that they took the unusual step of issuing a preliminary report in August of this year. This report was scathing towards the Department of Defence's consultation process—or, rather, lack of consultation process—stating that it:

… started too late in the process; lacked transparency; and was not conducted in a way which encouraged consensus in solving the policy problems at hand.

I think Senator Ludlam may have made mention that he has raised the issue as to whether the deadline that the government has imposed has much to do with the visit to Australia of US Secretary of State Hillary Clinton on 14 November. If that is the case, that would be adding insult to injury in a very poor process.

Further, the report revealed that Defence based its conclusions that the bill would not have a detrimental effect on academic institutions based on the fact that the one letter it wrote to Universities Australia in May 2011 prior to the exposure draft process was not responded to. That to me seems an inadequate and unacceptable approach—and, as the committee discovered, completely inaccurate. In fact, the significant gaps and lack of detail on the bill would mean that if it passed unamended it would potentially affect routine teaching and research activities, according to Dr Pamela Kinnear of Universities Australia. Nor were the public health and research sectors consulted, despite the fact that the bill as drafted would have serious consequences for any organisations undertaking research in Australia.

I think we ought to reflect briefly on the importance of academic freedom and that the history of academic freedom as set out can be traced back to the libertarian movement in the United States and to the days of its founding fathers. John Stuart Mill, in his essay on liberty in 1859, said:

It is necessary to consider separately these two hypotheses, each of which has a distinct branch of the argument corresponding to it. We can never be sure that the opinion we are endeavouring to stifle is a false opinion; and if we were sure, stifling it would be an evil still—


If the teachers of mankind are to be cognizant of all that they ought to know, everything must be free to be written and published without restraint.

Thomas Jefferson in a letter to English historian William Roscoe on 27 December 1820 said:

This institution—

That is, the University of Virginia—

will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left to combat it.

I think that this bill ignores those important principles.

Baroness Miller of Hendon, who Senator Ludlam referred to, spoke eloquently in the House of Lords when export controls on intangibles relating to controlled technology were introduced in the UK. She said:

The extension of the control of export of goods to the control of intangibles—the control of thoughts and ideas—is a radical step, unheard of in a democracy. It has serious constitutional implications. Goods are exported if they are physically moved out of the country. It is physically impossible to control ideas. But that is what the Government are trying to do.

That was in reference to the UK government and the wholly unsatisfactory state of affairs there in terms of a similar piece of legislation.

The significant gaps and lack of detail in this bill would mean that, if it were passed unamended, it would potentially affect this routine teaching I refer to. I think the committee process led to further discussions and consultation between Defence and the relevant sectors. The committee's final report made significant recommendations for amendments to the bill in line with the roundtable discussions between industry and Defence. I do acknowledge and commend the work of the Chief Scientist, Professor Ian Chubb. I note his letter to the chair of the committee, dated 28 September 2012, and the outcomes of that roundtable. I think that Professor Chubb did some very good work and did it in good faith. We are grateful for the work that he has done. The agreed outcomes of the roundtable discussions, chaired by Chief Scientist Chubb on 21 December 2012, were in an attachment to the chair of the committee. My question, however, to the government is: can the government state categorically that those agreed outcomes have been entrenched in amendments to this legislation? Have they been entrenched in a way that is unambiguous, in a way that clearly sets out and implements the agreed outcomes of the roundtable that the Chief Scientist chaired? Because I have some serious concerns about whether they do or not.

I acknowledge the importance of the treaty in this bill. I support the provisions relating directly to that treaty. As Senator Ronaldson has pointed out, this treaty has been a long time coming. It is something that the Howard government and the Bush administration signed off on five years ago, and I think there are legitimate questions to ask the government as to why it has taken so long to come to a position which is clearly unsatisfactory in terms of process and clearly unsatisfactory in terms of the potential unintended consequences. The principles in the bill are important, but the need for academic freedom and independent research is just as important, if not more important. Protection for such freedoms already exists in some areas of the law, and in particular in the recent amendments to the Higher Education Support Act.

The principles of academic freedom—I referred to John Stuart Mill and Thomas Jefferson earlier—enshrine the ideals of: freedom of speech, freedom from state and political influence, institutional self-government and excellence, the advancement of knowledge and innovation, peer review and the contestability of ideas. It is worth commenting on what Australia's longest-serving Prime Minister, Sir Robert Menzies said in 1964:

The integrity of the scholar would be under attack if he were told what he was to think about and how he was to think about it. It is of vital importance for human progress in all fields of knowledge that the highest encouragement should be given to untrammelled research, to the vigorous pursuit of truth, however unorthodox it may seem.

The Rudd Labor government also introduced specific charters to protect academic freedom within public research agencies, including in the CSIRO and ANSTO. It remains unclear why the current government would put these principles at risk when both they and previous governments have worked specifically to protect them. Given the importance placed on these principles by recent governments, it is also incredibly concerning that it appears to not have even occurred to Defence to consult with the relevant sectors.

I note that the government, the opposition and the Greens have all circulated proposed amendments to these bills. I am looking forward to hearing the arguments put forward in the committee stage, but it is worth referring to page 21 of the explanatory memorandum, which states:

There is no statistical data available to Defence in terms of the number of such research programs that relate to items on the DSGL nor the number of foreign researchers or students that are participating in these programs. However, this provision should have minimal impact on university courses or research programs as these controls will not apply to broad discussions of research projects or experiments that do not discuss or transfer technology listed in the DSGL.

I am not sure how the department can say that, given the concern expressed by many academics—and that is a very serious concern.

Ultimately, while I support the treaty provisions, I cannot support the bills as they stand. I will support the second reading stage of this legislation, but I reserve my position in relation to the third reading stage. Beyond amending these bills to correct the existing problems, it is vital that this is looked on as a salutary warning about proper and thorough scrutiny and process. I said at the outset that parliamentary checks and balances exist for a reason. These bills are an excellent example of why these steps should not be avoided or curtailed. I also strongly encourage the government to take into account the committee's comments about the Department of Defence. Consulting requirements and drafting requirements are there for a reason.

I will be supporting a number of the amendments from the opposition, Senator Ludlam and of course the government, but I think it is very important that we do not put academic freedom in this country at risk, in danger, as a result of an unsatisfactory process. I would like to conclude my remarks with thanks to the university sector, which has worked tirelessly to bring attention to the issues with these bills. They are reasonable and sensible concerns that ought to be heeded. I would like to thank them for their work and, in particular, for the time they have spent with my office discussing these bills. I will support the second reading. I look forward to the committee stages of this legislation.