Australia rushes to fix troubled Defence tech research law

Legislation will be rushed through the Australian parliament in the first sitting period this year in a bid to fix new Defence laws that have the potential to jail academics and stifle technology research.
Written by Josh Taylor, Contributor

The Australian government is rushing through legislation to fix Department of Defence trade laws that academics have warned could bring an end to technology research in Australia.

In 2012, the former Labor government passed the Defence Trade Control Act (DTCA) with little fanfare, in a bid to bring regulation that already exists for physical exports, such as weapons proliferation, into the digital world.

The example the government used to explain that legislation's necessity was that the rules applying to exporting a bomb should also apply to exporting the blueprints of that bomb.

It came about through the signing of the Australia-United States Defence Trade Cooperation Treaty in 2007.

This means that the intangible "supply" or "publication" of technology listed on the Defence and Strategic Goods List (DSGL) could be considered a criminal offence carrying up to 10 years in jail, or an AU$250,000 fine.

While it was expected that this legislation would simply cover technology used by the Department of Defence, the creation of the "dual-use" category means that a wide array of technological development and research has been caught up by the law.

Some examples of "dual-use" technology are computers, electronics, telecommunications, and information security.

Those working on technology or research that might be included on the list need to make a judgment call as to whether they must seek approval from the Department of Defence to collaborate with people based overseas, or whether they can publish their research in academic journals. If they don't, they risk facing the fine or jail time.

The legislation was criticised by academics and universities before it was passed, stating that it would hinder research collaboration between academics in Australia and those elsewhere in the world.

"Research teams are frequently formed internationally to solve a problem on an ad hoc basis, pooling talent as required from many nations. Constraints on communications and exclusions on foreign research partners will produce crippling effects. This will impact not only specific Australian computing research groups, but research capacity in the overall sector," professor John Grundy from the Computer Research and Education Association of Australasia wrote at the time.

"The heavy reliance on ICT across disciplines further increases this impact."

Although it was passed, one amendment put a two-year delay on the legislation coming into effect, in which time a steering committee chaired by Australia's chief scientist Ian Chubb worked with universities and research organisations to determine the impact the law would have on the research sector. The steering committee has come up with a number of changes that will be inserted via the amendment to the legislation in February.

Speaking at a public consultation in Sydney on Tuesday, Department of Defence representatives said the legislation needs to be amended before it comes into force in May. This means it will be entered into parliament as soon as possible in February, after consultation ends this week.

Although the financial and criminal penalties are likely to remain, the government is seeking to reassure researchers that it will be focusing on penalising only those who deliberately seek to break the law, and not those who break it accidentally, or are unaware of their new obligations.

There are also a few exemptions. For example, verbal communication would not count as supply for dual-use technologies on the list. Email would still be considered supply, but the representative indicated that researchers within Australia using email services based overseas would not need to obtain approval from the department.

For dual-use technology, researchers will no longer need to gain approval for publication from the minister for Defence under the changes. However, the minister can prohibit publication if it is believed that it would prejudice Australian security or international obligations.

The changes, however, still mean that academics will need to seek approval for a broad range of research activity from the Department of Defence. The representatives suggested that rather than seeking approval for every piece of research that may involve international collaboration, research institutions should seek approval for entire projects in advance. This would allow much more research activity to occur over the life of a project without needing to be constantly seeking approval from the department.

The National Tertiary Education Union has said its concerns with the proposed amendments remain, stating that it still potentially limits academic freedom and places a large administrative burden on research organisations and universities, putting them at a competitive disadvantage to their overseas counterparts.

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