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REFLECTIONS ON THE AUSTRALIAN CONSTITUTION

National science and industry policy – balancing the centrifugal tendency
17 August 2001

Professor John W White CMG FAA FRS [1]
Australian Academy of Science and The Research School of Chemistry, Australian National University Canberra

Centrifugal (sentri·fiûgâl), a.1721. [f.mod.L.centrifugus (Newton, f. centrum +-fugus) +-AL. Cf.CENTRIPETAL. I. Flying or tending to fly off the centre. Also fig.
(Shorter Oxford English Dictionary)

Abstract

This paper addresses a question prevalent in democracies such as the United States and Australia where there is legislative power sharing between Federal and State Governments. The Australian Constitution may be out of date in respect of issues raised by modern science and technology. Practically this is a matter of the extent to which the Constitution can encompass a framework of law and regulation to provide nationally coherent responses to either major scientific developments (such as human cloning) or challenges such as the globalisation of science and industry. The trend towards global decision making is highly relevant to Australia's economic future. The constitutional arrangements in Australia have so far failed to facilitate a much needed, coherent response from State and Federal agencies to meet that of our trade and scientific competitors.

Introduction

As I write this, the Italian doctor, Professor Severino Antinori has just announced at a meeting of the United States National Academy of Sciences that, despite all objections on both scientific and moral grounds, he is preparing to clone about 200 children from the group of 1300 volunteer couples who have contacted him. He will use the same sort of cell nuclear transfer techniques which produced, after many failures, the cloned sheep 'Dolly' in 1997. The cloning will be done at a secret location in the United States and there appears to be no United States national law or policy to inhibit Professor Antinori's intentions despite strong urgings for caution from the scientific community on the basis of risk.

According to the English poet W H Auden:

The world scene has been set by great discoveries such as nuclear energy, the transistor, the role of DNA in heredity and genetic disease, the knowledge of the human genome and, most recently, the remarkable discoveries in connection with human and animal cloning. The future of medicine, world population and environmental control are in the balance. The Australian Academy of Science sees it's role as promoting discussions on these matters from the most informed basis possible – but where will this advice be taken up? It may be at a national level through actions of the Federal Government or through the individual States and Territories or by some casual cooperation of all of those parties. This paper urges the creation and reinforcement of structures in the Constitution to systematically produce nationwide policy. The need for this is illustrated by reference to current 'hot issues' of nuclear energy and 'therapeutic cloning'.

Auden overstates his point somewhat. We would not have our current Constitution or structure of laws without the initiatives of thoughtful people like Alfred Deakin in the law, the arts and the churches. But the impact of science is now so pervasive that it must be timely to provide an 'in principle' constitutional basis for future development. Japan has done this with its 'Basic Law for Science' of 1996, recognising that science, though not autonomous, needs to flourish for the national good.

There is also a practical reason to enshrine science in the Constitution. The costs are great, and likely to rise, both in repairing past mistakes (eg on the environment), and in responding to the worldwide recognition of innovation based upon scientific discovery as the generator of future national wealth. The 'knowledge economy' is a notion current throughout the world. Australia's economic sustainability rests on these two major investments.

An historical context

Great scientific discoveries inevitably have moral and ethical consequences. For example, the application of science in industry may lead to pollution and currently there is public apprehension of possible genetic pollution associated with plants and animals whose genes have been modified for specific outcomes. These concerns are genuine and important. Fear of the unknown is a real problem – but the structure of Commonwealth and State law must be robust enough to allow Australia to reap the benefits of national scientific investment over the past 50 years. At the same time, this law should provide the safeguards for moral and ethical values which give a society its self respect. The Hon Justice Michael Kirby in his discourse, The Ten Rules Of Valencia, (January 1999) illustrated this problem

The discovery by Hahn and Strassman in 1939 of nuclear fission – the splitting apart of the uranium nucleus – was certainly one of the greatest discoveries ever made. Its consequences are evident – the production of the atomic bomb and the rapid ending of the second world war and, the nuclear arms race on the one hand and the availability of nuclear energy on the other. Some would prefer it never to have been discovered, or at least suppressed, but this is as impossible as it was to Brutus (about Julius Caesar):

(Julius Caesar Act 2, Scene i)

Australian nuclear policy

Australia faces a challenge to develop a coherent and bipartisan, nuclear policy. The long term importance of nuclear energy as the only likely practical alternative to supply the new economies of north Asia coupled with the extensive uranium reserves and possible waste storage potential of Australia, mean that problems have to be faced.

For what were then obvious reasons, Australia did have a policy in 1946. It is asserted in the recent book by Reynolds [2] that one of the principal reasons for the establishment of the Australian National University and in particular the Research School of Physical Sciences was the Federal Government's response to the discovery of nuclear energy. This was followed by the bringing of Oliphant and Titterton to Australia, the creation of a National Accelerator Facility and eventually the establishment of the Australian Atomic Energy  Commission.

It is asserted by Reynolds that Australia required nuclear scientists of the highest quality in case it needed nuclear weapons in the future. Australia's economic strength then supported a very high view of its political role in the Asia-Pacific region. By the early 1970s Australia had developed technology for uranium enrichment which was better than that of many other countries and we had skilled technologists capable mounting a peaceful nuclear program. Much of this is now gone.

The dread of nuclear war and of radioactive pollution has driven public consciousness and nuclear policy development in Australia since the mid 1970s. It is probably fair to say that public opinion is now firmly anti-nuclear. In 1997 and 1998 I attended meetings in Japan to study methods of reducing the radioactivity of nuclear waste. Such is the north Asian commitment to nuclear power that the Japanese government has decided to invest more than 2 billion dollars for the first experimental studies of spallation waste destruction. This extremely costly program depends on a technology not yet realised and which will certainly cost many times more than two billion dollars to implement commercially. The same technology is being studied in Europe and the USA.

Why is this? What came out of the meetings in Japan was a clear view that some of the North Asian countries could not see any way towards a future industrial prosperity without relying in some fairly large measure on nuclear power. Where does this leave Australia's policies?

The matter arose most acutely in connection with the replacement research reactor at Lucas Heights. The Australian Academy of Science took counsel from some of the best experts in Australia and has continually supported the proposal for a replacement research reactor. The prime reason given for this has been 'national benefit' with secondary considerations, being, the provision of nuclear isotopes for medical purposes and the scientific benefits from using neutron beams. The national interest was here defined as retaining a scientific and technological strength in Australia which would allow us to participate from a position of strength in the resolution of future problems relating to the peaceful uses of nuclear energy.

There is currently no conflict between Commonwealth and State interests but one could easily arise – for example the need to create a nuclear waste repository in Australia. There is commercial incentive for this, but there is also a national interest matter to be resolved which needs overarching policy. Such is the relationship between States and Commonwealth under the present Constitution that this policy may be stillborn.

Human cloning

If nuclear weapons and nuclear energy were the issues of the past 50 years, the issues associated with the human genome and the possibilities of using cloning techniques – now well developed for animals – for human therapies, must rank highly in their potential future impact on our society.

Australia has international eminence in biomedical research but, there is as yet no national policy which would permit or regulate research in 'therapeutic cloning' or the use of human stem cells. In the United States (for lack of any inhibition to commercial exploitation in these areas) research is burgeoning but not publicly accessible. In Europe and Singapore, stem cell experiments are now sanctioned. At the moment the principal ethical concern relates to the use of surplus human embryos from in-vitro fertilisation programs to produce 'stem cells' for research into the modes of human cell differentiation and possible organ repair treatments. These 'stem cells' are capable of becoming any cell in the body. In animals, it has been demonstrated already that stem cells placed near a paraplegic animal's spinal cord can achieve a measure of repair. Stem cells placed in the brain of an animal affected with Parkinson's disease induce recovery of part of the nervous and mental function.

Once again the option mooted by Brutus is not open to us. In the United Kingdom both the House of Commons and the House of Lords have agreed to experiments using tissue from human embryos up to 14 days after fertilisation under defined circumstances. In Singapore, one of the focused national objectives for the next 10 years relates to pharmaceutical and medical products and a strong team is suffering no legal impediment is working in the stem cell area.  Their distinguished collaborators in Victoria and other States in Australia could suffer imprisonment for up to 10 years for attempting simular procedures. The ethical concerns of many Australians are strong but the science will move on. The Academy's papers 'Human Cloning 1999' and 'Human Stem Cell Research 2001' were produced to promote informed discussion by the Australian public. Some of the legal positions worldwide and of the Australian States are also set out.

Resulting from discussions over the last three years, and partly as a result of the Academy of Science's papers, public debate has started. The Australian Human Ethics Committee has given direction on human experimentation to the House of Representatives Legal and Constitutional Affairs Committee chaired by Liberal MP Kevin Andrews, is enquiring into scientific, ethical and regulatory aspects of human cloning. I believe that Australia should avoid by all means the situation that has arisen in the United States in this area. Because the US Federal government banned the use of government money for embryo and stem cell research in 1998 whilst permitting unfettered activity within the industrial sector, there is little transparency to the public. As we have seen with genetic modification of crops and other recent biotechnological advances, the public becomes extremely suspicious of closed science. Science is not an autonomous activity in Australia. It is paid for largely by governments and owes a duty to explain and carry the population with it as discoveries are made. What is certain is that we are in a very competitive environment internationally and Australia must make up its mind on cloning issues quickly.

An example of the centrifugal tendency in science policy

One of the major consequences of the Federal Liberal Government's policy for a Goods and Services Tax (GST) is that very substantial monies will flow to the States. The centrifugal tendency in science and industry policy (the focus of the present paper) is to some extent 'built in' by the Constitution. It may be greatly amplified by the greater financial independence given to the States through this tax.

The most vivid recent indication of centrifugality was the Victorian government's announcement on 23 June that it would 'go it alone' with a contribution of $100 million towards a synchrotron for Australia. This synchrotron is a major piece of scientific infrastructure, possessed by most other highly developed scientific and industrial countries. But the cost, as evaluated by the Australian Synchrotron Radiation Program (ASRP) at its March 2001 meeting on the basis of several years study, is about $250 million over 10 years. This cost includes the approximately $160 million of capital cost of building the facility and five years subsequent operation. There is strong support from the Australian Academy of Science and the scientific community for the construction of the synchrotron.

The Victorian government's decision should be applauded for its initiative but poses major problems of process. The Major National Research Facilities program, announced by the Prime Minister in his Federation statement on 29 January 2001, allows for the contestation of bids from different centres of excellence. Three States, Victoria, New South Wales and Queensland had bid competitively for this facility against the $155 million Federal money announced in the program. It was always understood that there would have to be a large State financial contribution to capital and running costs from the winning bidder.

There is currently great competition between the States for national leadership in biotechnology. The synchrotron would help the winner in this. The Major National Research Facilities program of the Federal government was meant to be a forum in which the virtues of the proposals from different States were contested. At the time of writing this lecture it is unclear as to whether the Victorian bid has in fact trumped the other two or whether some form of contestable process will continue under the supervision of the Major National Research Facilities program.

On the one hand it is greatly to its credit that the Victorian government has taken the initiative and has given forthright support to this major project. On the other, there is uncertainty of process since the elements of the Victorian bid are the least known of any of the bids in the scientific community. Some form of contestable process is undoubtedly necessary when such sums of money are to be spent and when projects of 10 to 20 years duration which effect the future orientation of the Australian Science and Technology program are being decided.

The health of academe

Except for the Australian National University, higher education is a responsibility devolved to States under the Constitution. It is, however, subject to the same centrifugal tendencies as science policy because the principal source of University funding is from the Commonwealth Department of Education, Training and Youth Affairs. The devolution of responsibility would seem intrinsically to be a good thing but the higher education system is currently under strain nationally and, some would say, in crisis. A reappraisal is needed – the health of academe is vital for the cultural and economic wellbeing of Australia since a large fraction of Australian research is done in universities.

On 2 July 2001 the Australia Labour Party issued a major policy paper 'An Agenda for the Knowledge Nation. ' This paper speaks of the Labour Party's intention, if elected, to double Australia's investment in research and development by 2010 taking the country to the top of the world's rankings. Such goals respond to the analyses made by Australia's Chief Scientist, Dr Robin Batterham, and the Federal Government's Innovation Task Force in 2000. They advocate much higher investment in higher education that at present – a recommendation which the Federal Government began to address in the Prime Minister's Federation Statement of  29 January 2001.

But what is needed? What is the scale of the competition in our geographic region? In its higher education area, Singapore has invested in 13 major research institutes, many with a budget of say $500 million per annum (nearly four times the budget for the whole Institute of Advanced Studies at the Australian National University) which span Pacific and Asian Studies through to Mathematics and Physical Sciences. The competition is extremely strong, even at the academic level, but at the industrial initiative level it is even more so. Singapore is proposing to invest in biotechnology at the rate of approximately $1000 million per annum for the next five years. Australia's biotechnology investment (no doubt resting on a stronger base than that in Singapore) may be of the order of a few hundred million dollars at the most.

Clearly money is needed, but as a first, structural step, the Academy has long advocated the need to maintain the quality of outcomes in training and research subsequent to the doubling in the number of Australian universities in 1989. This doubling was not accompanied by budgetary increases to ensure that major centres of learning in the Sciences and the Arts would retain their hitherto international reputation. There is need now for a new national higher education funding policy based on quality assessment. The experience of the last 10 years has shown that a 'laissez faire' policy of market forces does not work adequately in the higher educational system.

Industrial policy

The way in which Australia as a nation deals with the effects of globalisation of industry is as keen a problem as any facing our constitutional arrangements. The spectre of individual States competing with one another in negotiations with multinational companies is alarming but inevitable under prevailing conditions. Perhaps nowhere is there a more pressing need for an overarching set of structures or policies, between the Federal Government and the States.

I am told that Australia is no longer on the 'radar screen' of American investors, some thinking it is somewhere in Europe! As a nation we have to face up to the competition of city states like Singapore. For them the negotiating process is very simple: they can provide a 'one stop shop' of high class negotiators representing the national interest who can make immediate decisions or provide high level assurance.

Australia, on the other hand, has an evolved, broad structure of more than a thousand public servants in the Commonwealth alone.  States compete for industry investment and for major programs such as the biotechnology synchrotron investment mentioned above.

As an example of possible centrifugality let us consider scenarios for the development of Australia's petroleum resources. The north west shelf off the Pilbara region of Western Australia has extensive gas and petroleum supplies and so does the sea between Darwin and Timor. Darwin has a higher level of local infrastructure but Western Australia is keen to develop its resources. Can both the Northern Territory and Western Australia simultaneously develop, given Australia's capital resources? The answer is almost certainly no. Who will act, and by what mechanism, in the national interest to achieve phased development to maximise the return over long periods to Australia?

And what of the next step towards a Knowledge Economy? Australia, with the above mentioned petroleum resources and a strong agricultural economy, has the possibility of a sustainable value added industry in chemicals. The new feedstocks for industry may be 'green', from agricultural resources such as sugar, as well as from the traditional petroleum based ones. There is an exciting challenge for the next fifty years and Australia is well placed to respond to it.

The Constitution should acknowledge the importance of science for our nation's future and be an enabling document for innovation and national wealth creation in a framework of law.

How to Improve the Situation?

I see a need to provide an appropriate mechanism whereby the States and the Commonwealth can work together, at a high level. The Constitution sets out the complementary roles and responsibilities of the Commonwealth and the States on a variety of issues which were seen in 1900 as integral to the prosperity of the new nation.

Now as with taxation and defence, the facility is needed to create overarching policy positions for science and industry which orchestrate the collective efforts of Commonwealth and States. The legal instruments available to achieve this may be within the interests and competence of those who attend this meeting.

Whether or not a future Constitution accounts specifically for science and industrial endeavours, a stronger role for interstate and commonwealth ministerial councils and structures could be a first step.  Fed by an informed choice of national priorities, a broad framework of concerted actions by States and Commonwealth could address the issues raised here.

Summary

This paper argues that there is currently an accelerating tendency towards a fragmentation of Australian science and industrial policies. This stems from international trends but is not impeded, nor yet assisted, by the Australian Constitution which sets out guidelines for Commonwealth and State responsibilities in other areas. It is argued that there needs to be a stronger role for interstate and commonwealth ministerial councils and structures, fed by an informed choice of national priorities to provide a broad framework of national policy within which States and Commonwealth can work together harmoniously in new ways.

JWW White
17 August 2001

[1] John White has, for the last four years, been the Science Policy Secretary of the Australian Academy of Science and a member of the Council of the Academy. As such he has taken a leading part in the formulation of the Academy's position in giving advice to the Federal Government on National Policies for higher education, innovation and industrial development, major national projects such as the cooperative research centres, major national research facilities and most recently in developing, through public consultation, expert and lay committees, the Academy's position statements 'current position statements on human cloning and human stem cell research.' Professor White is currently President of the Royal Australian Chemical Institute.

[2] Australia's Bid for the Atomic Bomb by Wayne Reynolds (MUP, 2000)