A Senate committee has sharply criticised the Defence Department and recommended a government bill designed to further integrate Australian defence procurement into US weapon sales be put on hold, after Defence tried to establish a power to censor academic publications.
The Defence Trade Controls Bill 2011 and accompanying regulations passed the House of Representatives late last year and since arrival in the Senate has been examined by the Foreign Affairs, Defence and Trade Legislation Committee, chaired by Labor senator Ursula Stephens. The committee issued a preliminary report this week.
The reason for the long wait, and the fact that the committee only issued a preliminary report, is that the Department of Defence made the extraordinary decision to consult only with defence industry contractors about the bill, and not some of those most directly affected by it, academic researchers.
The bill implements a treaty signed between John Howard and George W. Bush at the Sydney APEC meeting in 2007 and retained by the Rudd and Gillard governments. It is designed to make it easier for Australia to buy weapons from the US by removing some export restrictions and licensing requirements for weapons if a company is a member of an “Approved Community”, which would give a company a significant competitive advantage in the lucrative defence procurement field.
Get Crikey FREE to your inbox every weekday morning with the Crikey Worm.
It’s the conditions for joining and remaining part of that “Community” that are the problem. There is common support for the intent of the bill, but its implementation has drawn widespread criticism. Not merely are the requirements in areas such as record-keeping and tracking of material onerous, but they imposed serious restrictions on transferring “non-tangible goods” such as research.
It was only when the Committee began hearings into the bill that it learnt Defence had not consulted with universities about the potential impacts on academics and researchers involved in areas that might be deemed related to national security. After a rev-up from the Committee, Defence belatedly began a consultation process with Universities Australia and the University of Sydney in March.
A key concern for academics was that the requirements in the bill and draft regulations for not transferring “non-tangible goods”, extended across a wide ambit of areas of research, including pharmaceuticals, biotechnology and nanotechnology, although information already in the public domain, and “basic research”, was exempt. Simply determining what was already “in the public domain” would be an onerous task, Universities Australia pointed out in a submission to the committee. Universities Australia also warned that the collaborative nature of much academic research would be potentially severely affected.
“The Bill will make it difficult to continue with a number of collaborative research projects and partnerships with foreign institutions … Bringing in international experts or foreign students will require permits where students or staff are working with controlled information. Again there is a huge administrative burden being imposed on each university to work out whether or not the information is controlled … For certain technologies, it may become very difficult to continue international collaborations without permits.”
Universities Australia proposed a series of amendments to the bill and regulations, and provided them to Defence as the basis for further discussions. Universities Australia was backed up by the Department of Innovation. In an unusual development, that Department provided the committee with a submission critical of another Department. “Given the importance of international collaboration to Australia’s research and innovation, the tightening of regulations envisaged in the Bill may result in a significant administrative burden on the research sector and result in disruption to establishing international collaborations,” the Department warned in early July.
Then Defence produced a bombshell. In June, in response to the amendments package put forward by Universities Australia, Defence sent back its own set of minor options that ignored Universities Australia’s package and in effect replicated the effect of the existing bill. In particular, after previously explicitly ruling out that the regulations would permit Defence to block the publication of academic articles, Defence now asserted that it would have the right to censor academic publications on national security grounds, or researchers would lose access to the “Approved Community”. In its assessment of Defence’s new set of options, the University of Sydney said:
“Defence has previously indicated that there is no intention to control the ‘publication’ of research findings, but the text on page five of the Paper clearly contemplates Defence issuing permits covering ‘publication’. While we recognise that the higher education sector’s views about free intellectual inquiry need to be balanced with considerations of the national security, we are concerned with this development and feel that at present the application of the permitting regime to publications is insufficiently clear.”
At that stage, “consultation” broke down. Universities Australia remained concerned at the censorship proposal and other elements of the revamped Defence offer, but Defence refused to budge. By earlier this month, the University of Sydney’s Professor Jill Trewhella wrote to the committee to say that the university sector couldn’t reach agreement with Defence.
In response, the Committee endorsed Universities Australia’s suggestion to revive discussions by involving Chief Scientist Ian Chubb and, crucially, urged the Senate not to proceed with consideration of the bill until an outcome from the consultations had been achieved; the Committee wants to make a final report by the end of October. Its recommendations contained this slap for Defence.
“The committee is disappointed with the consultation undertaken by Defence in regards to this bill. Evidence provided to the committee demonstrates that the consultation conducted by Defence was 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. The committee draws Defence’s attention to the issues outlined in this report.”
The result of Defence’s negligence is that the bill remains on hold for now.