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Science and the slammer: the consequences of Australia’s new export control regime

At this moment, Australian Parliament is considering a Bill with far-reaching consequences for Australian research aimed at improving health, and fostering innovation in communications, mining, agriculture…

There has been little debate around the proposed Defence Trade Controls Bill, which could criminalise common research activities. Image sourced from www.shutterstock.com

At this moment, Australian Parliament is considering a Bill with far-reaching consequences for Australian research aimed at improving health, and fostering innovation in communications, mining, agriculture, manufacture and trade.

Its potential implications are shocking, and at odds with existing Australian legislation protecting academic freedom – potentially disrupting and even criminalising common activities undertaken in the course of university research.

Of course our sector has been preoccupied not just with Peter Slipper, but also with the recent news of potential funding freezes in major research bodies like the ARC.

However, the likely impact of the Defence Trade Controls Bill is much more significant than even a funding freeze – action is now urgently required. We must demand amendment of the legislation.

The Defence Trade Controls Bill

The Bill’s primary purpose is to give effect to the Australia-United States Defence Trade Cooperation Treaty signed by the Howard Government in 2007. The main benefit of this treaty is to reduce the onerous administrative burdens that have hampered Australian-US defence trade, in place because of restrictive “export controls”.

These controls were so unworkable that the US and Australia couldn’t even conduct bilateral trade relations without a new treaty!

The Bill reduces the burden of export controls for Defence industries with one hand, but simultaneously creates a totally new class of potentially stifling export controls on everyone else with the other. As a result, researchers working with an extraordinarily broad sampling of technologies would require Defence-issued permits for their research to proceed, or face criminal penalties.

In particular, the Bill introduces a new kind of export control on so-called “intangible transfers” that has enormous potential implications for Australian universities.

The DTCB could drastically change the nature of university research shutterstock

These are transfers relating to exports of information about controlled technologies, rather than physical shipments of goods. On its face, controlling such transfers makes some sense, but the devil is in the details, and this Bill has a lot of details.

What does it mean?

To understand exactly what technologies are controlled, we have to review the Defence Strategic Goods List (DSGL) – a 380 page technical legal document that lists a dauntingly broad range of materials and technologies.

The whole document is heavily cross-referenced and requires flipping between appendices, the main list, and even a separate explanatory memorandum to understand the legal definitions it uses.

Of particular concern are “dual-use” goods; these may be employed in a complex weapons system such as a missile, but might also find standard uses for civilian purposes - including scientific and medical research.

This part of the list covers things like lasers, electronics, semiconductor manufacturing equipment, standard chemicals, even elements of the periodic table – and not the ones associated with producing nuclear weapons either. Unfortunately, after reviewing the DSGL it becomes obvious that cutting-edge scientific research relies heavily on exactly the kinds of technology that the list seeks to control.

For instance, the appearance on the DSGL of atomic frequency standards, low-phase-noise oscillators, radio-frequency amplifiers and electronic systems, and the like, mean that key technologies for the international Square-Kilometre-Array would likely be controlled.

Aside from the breadth of the list is the complication in getting a handle on the notion of controlling information about DSGL items. This is because we all know when we are shipping a box to a foreign recipient abroad, but it’s often much less clear when we are conducting an intangible transfer related to a controlled item.

Understanding exactly which technology variants are restricted and under what conditions, or whether an intangible transfer relating to a particular activity (e.g. development, modification, use, characterisation) is controlled is a challenging legal question. If you didn’t really understand this paragraph, then you know how you’ll feel when trying to assess whether or not specific activities are actually controlled in the lab.

Getting down to brass tacks

Unfortunately, avoiding prison will require us to make exactly this kind of determination all the time, because as scientists we depend on communication about our work. Scientists collaborate and discuss experiments with peers abroad, email data using servers located offshore, and publish scientific findings in international journals. In nearly all cases – more than 90% of the time at Sydney – these scientists are conducting basic or applied research in the public interest, having no relation to weapons or defence, and posing no reasonable risk to national security.

Controls on intangible transfers, as suggested by the Bill, would mean that a range of activities involving DSGL technologies in the course of ordinary research would require review and permitting by the Department of Defence. The Bill would even criminalise publication of data or information relating to these technologies – including information on how to use or operate systems that can be bought and legally exported to Australia from the US or other nations.

The Bill threatens to silence Australian scientific research shutterstock

You can buy DSGL technologies (yes actual pieces of hardware) from foreigners without any permitting, but then can’t tell foreigners about how they work, or what you do with them… seriously!

The practical implications are almost unbelievable. Legal advice suggests that effectively every academic researcher expecting to engage in some form of intangible transfer must first review the entirety of the DSGL prior to purchasing any piece of equipment.

In many cases there will be questions as to whether the specific version of the technology appearing on the list is sufficiently similar to that being acquired, or if the expected intangible transfers are going to be controlled. Given criminal penalties for noncompliance, we’ll all be seeking frequent legal advice.

In some cases legal advice will suggest that you must apply for a permit from Defence, which will require a minimum of a few weeks in preparation, application, and waiting for a decision.

Of course the alternative is that we can fundamentally change the way we do research, keeping information segregated, and ensuring our students or postdocs don’t disclose too much information about the Minicircuits RF amplifiers they’re using to a foreigner (yes many are controlled).

Imagine the international SKA project - which deals heavily in DSGL-listed technologies and fundamentally relies on international cooperation and communications - trying to proceed in the face of this kind of export control regime. Remember how unworkable the controls became for US-Australian Defence trade…

Not even the Americans have this

These restrictions on Australian scientists and academics are extraordinary in scope. In fact, the proposed legislation will potentially put in place a much more stringent and restrictive export control regime than that applied to our colleagues in the US.

US researchers in accredited higher education institutions enjoy broad exclusions from export control, particularly relating to intangible transfers of dual-use technology occurring in the course of public-good basic or applied research. US researchers are not exempt from export controls; the controls themselves are simply not designed to apply to basic or applied scientific research, as can be found right in the text of the law.

The legislation emerging from the Australian Defence department does not extend those exclusions, as confirmed by recent independent legal advice provided to the University of Sydney from a Washington, DC law firm. The Australian legislation only offers protection for information already in the public domain and “basic” research conducted exclusively for the generation of knowledge with no potential applications in mind. Unfortunately, not much real Australian research is quite so blue-sky; the ARC typically wouldn’t fund it!

In Australia, control over the DTCB lies with the Department of Defence AAP

The net result imposes potentially stifling controls on our researchers and puts them at a serious disadvantage compared to their peers in the US, especially because of the relative importance of international collaboration to a small nation like Australia. Aside from the exclusions noted above, researchers in the US or UK/EU (both with similar, but less restrictive regimes) are allowed unfettered communication within a population of about 300 million. Australia’s population is 10 times smaller.

But in addition to putting in place an onerous regulatory regime, the legislation gives an unprecedented level of authority to one government department to decide what research is and is not allowed. Recall, the DSGL covers dual-use technologies, not just military technologies, making the scope of authority and capabilities of Defence to make reasonable risk assessments rather questionable.

In the US the relevant authority rests with the Departments of State and Commerce - not Defence.

Unintended consequences

Legislation that seeks to extend the power of government and simultaneously restrict legally protected academic freedom must be openly debated and considered in the light of adequate, verifiable information to assess the need and the impact.

Regrettably, this piece of legislation has been advanced with nearly no understanding or recognition of its potential impact. For instance, the explanatory memorandum to the Bill states “there is no statistical data available to Defence in terms of the number of… research programs that relate to items on the DSGL,” but then asserts the Bill will impact only a small number of specialised research programs. This despite a range of evidence to the contrary presented by the research community.

These failings were so significant that just two months ago the Senate Foreign Affairs, Defence, and Trade Committee issued an unusually strong rebuke of Defence for failing to adequately consider the unintended consequences of the legislation or to consult appropriately with key stakeholders. In that report the committee noted “it is difficult for the committee to understand how Defence reached the conclusion in the Regulation Impact Statement that the bill would not have a detrimental effect on academic institutions.”

Now, without any serious progress towards resolving these issues, and over the strong dissent of both the Coalition and the Greens, the committee has advanced the legislation.

Call to action

Political reality makes clear that there are likely compelling reasons why it may be in the national interest to expedite passage of the legislation. In this case a simple amendment to the Bill is required.

We must all demand that before the Bill passes, the law is amended to require that Australian academics will not be subject to greater restrictions on their work than our US colleagues.

Parliament needs to realise how important this amendment is to the future of Australian research!