2 November 2012
A controversial Defence Trade Controls Bill has now passed the Senate, following the rejection by the House of Representatives of an earlier Senate amendment (“amendment nine”), that would have exempted fundamental research from the restrictive provisions of the legislation.
The legislation will give effect to a 2007 treaty between Australia and the US over trade in defence goods and services.
A permit will be needed “if the researcher will be communicating information that is regulated by the Defence and Strategic Goods List to a person outside Australia” allowing the government to “assess the risk of providing that technology to a person overseas”.
Sections of the research community argued that in freeing up that trade, not enough attention has been given to ways in which the laws might hamper scholarly publishing, international collaboration and add to the burden of red tape at universities seeking to comply with them.
In arguing for rejection of Amendment Nine, defence minister Stephen Smith said it would effectively exempt from the bill anyone who claims to be conducting fundamental research.
This would mean a far broader effect than that caused by the US exception for fundamental research, which only applies to research outputs.
Research inputs are subject to US export controls; there is no US exception that allows controlled technology to be exported from the US for fundamental research without US government authorisation.”
One of the amendments to the Bill allows for a two year trial of its operation, overseen by a steering group chaired by chief scientist Ian Chubb, which would be able to suggest further amendments should they be required. He says the two year trial offers everyone the opportunity to “get real”:
… to get information, to get analytical and so to get what we need to make decisions and recommendations of substance. I plan to do that.
Universities Australia has cautiously noted the legislation “provides a way forward for testing [is]impact on Australian researchers after a long and challenging period of negotiation”: According to Belinda Robinson, chief executive of Universities Australia (UA):
During the trial, researchers will not be subject to offence provisions. This will provide the opportunity to ‘learn by doing’ and secure clarity on the remaining uncertainties about how the regime will work and its impact on universities and the Australian research community
If properly managed and implemented, the trial will help to make up for the fact that an adequate assessment of the regulatory impact was not done prior to the legislation being introduced.
UA did express disappointment at the rejection of the Senate’s amendment to mirror US exclusions for ‘fundamental research’.
University of Sydney deputy vice-chancellor Jill Trewhella has characterised the legislation as an “attack on our research enterprise”, saying it is “extraordinary” for these kinds of constraints to be put on “our communication for fundamental science that is ordinarily shared in the open scientific literature”.
The National Tertiary Education Union (NTEU) was “appalled”. NTEU president Jeannie Rea suggested the legislation diminishes academic freedom of inquiry and collaboration:
University researchers now face a great deal of uncertainty about what research they can legitimately exchange or publish without potentially facing criminal sanction. An even worse outcome is that the government and coalition have relied upon a barely comprehensible reference to national interest considerations at the expense of Australia’s research and innovation efforts.
