Interim position paper—Defence Trade Control Act 2012

29 April 2016

This interim position paper is subject to ongoing consultation and will be updated throughout 2016 as impact of the Defence Trade Controls Act 2012 (DTCA) becomes better understood. This interim position paper provides some background information about the Act, sets out the Academy’s position to date, explores some of the concerns raised surrounding the DTCA, and outlines the next steps that will be taken to finalise this paper.

Background

What is the Defence Trade Control Act 2012?

The Defence Trade Controls Act 2012 (DTCA) regulates the trade and supply of hardware, technology and intellectual property that has a primary or secondary (dual-use) military purpose. The Act regulates how people in Australia can provide certain hardware, technology or information about these technologies to those outside Australia.

Areas of technology covered by the DTCA

The DTCA applies to Australian citizens and residents supplying technology identified on the Defence and Strategic Goods List (DSGL) from Australia, to persons in a foreign country, both for commercial and non-commercial purposes. The DSGL contains two parts. Part 1 of the DSGL covers strictly military items, such as weapons, chemical and biological warfare agents, explosives, military platforms and components.

Part 2 of the DSGL lists controlled dual-use technologies. These are technologies which have potential military applications. Dual-use technologies can include nuclear materials, micro-organisms, toxins, sensors, lasers, electronics for navigation and avionics, and areas of cryptography.

Controlled military technology (Part 1) Controlled dual-use technology (Part 2)
Supply Permit required Permit required
Publishing Approval by Minister for Defence or their delegate No approval
Brokering Permit required No permit required (unless for a weapon of mass destruction or military end-use)

Why did the Australian Government introduce the DTCA?

Australia has responsibilities under international treaties, regimes and conventions1, and to the community, to ensure that military hardware and technologies are not supplied to nations deemed to be enemies of, or pose military threats to, Australia and its allies. The physical supply of military hardware has long been regulated, but there has been no or little regulation of the supply of military or so-called dual-use technologies and related information via other means, such as electronically. The Australian Government introduced the DTCA to tighten the regulatory framework.

Initial sector concerns on the impact of the DTCA

The DTCA was passed by the Australian Parliament in 2012. At the time the research sector raised significant concerns about the Act, including the lack of consultation with the sector, its potential impact on academic freedom, the added administrative burden, the potential impact on scientific progress, and the impact on international collaborations. As a consequence of these concerns, the Government agreed to delay implementation of offence provisions of the Act by two years and to consult more widely with the sector on how the legislation could be improved. The Strengthened Export Controls Steering Committee, chaired by Australia’s Chief Scientist, was established to consult with relevant stakeholders, road-test the legislation and to recommend changes.

Government response to sector concerns—amending the DTCA

Following consultation, the steering committee recommended a number of ways in which the Act could be improved. In response, the Government proposed amending the DTCA and published an exposure draft Bill in December 2014. Had this Bill not passed and these amendments made prior to April 2015 the original, more restrictive Act would have automatically come into effect.

Academy positions

The Academy’s position on the need for supply controls of technologies with potential military applications

The Academy recognises that Australia has obligations to both the international and the Australian community to ensure that certain technologies with potential military applications do not end up in the wrong hands. To this end, governments around the world have put in place controls that manage how some technologies with a potential military use can be shared with those overseas.

The Academy’s position on the Defence Trade Control Act

The Australian Academy of Science has not put forward a position specifically supporting or rejecting the DTCA. The Academy recognises there are a range of different views among scientists about whether the DTCA appropriately meets the expectations of both the scientific and the broader community, and will continue to examine the impacts of the Act to feed into its submission to the legislative review of the Act which will take place in April 2018.

The Academy’s position on the Defence Trade Control Amendment Bill 2015

Australian Academy of Science—submissions to government inquiries and consultations

In line with its Charter the Academy provides expert scientific advice to the government and part of this involves putting forward submissions to government inquiries and consultations. As is the case with any Academy submission, the submission must be approved by the Executive Committee of Council prior to being made. At no point has the Academy sought to imply that its submissions are representative of all Fellows, and acknowledges there is a diversity of opinion on any given issue, including the DTCA.

Submission to the Department of Defence consultation on the draft DTCA Amendment Bill 2015

The steering committee charged with investigating ways to improve the DTCA made a number of recommendations. The Government responded by proposing to amend the Act with an amendment Bill in late 2015.

The proposed amendments put forward by the Government made the DTCA less restrictive and less burdensome on researchers. The most important changes made to the Act were:

  • Providing exemptions for:
    • Oral supply of DSGL technology
    • Pre-publication supply of DSGL technology
  • No longer needing Ministerial approval for the publication of DSGL technology
  • Allowing for applicants to apply for supply and broker permits on behalf of projects, and for permits to be issued to project participants
  • Maximum permit duration extended from two years to up to five years or the life of the project
  • Requirement for regular legislative review (to take place in April 2018)
  • Streamlined licenses for lower risk activities, such as general dual-use items going to member states of international counter-proliferation regimes.

Recognising that without the Amendment Bill passing the original, more restrictive Act would come into force automatically in April 2015, the Academy put forward a submission to the Department of Defence supporting the Defence Trade Controls Amendment Bill 2015. Specifically, the submission supported the proposed changes that provide scientists with additional exemptions covering verbal supply of controlled technology and the removal of Ministerial approval for the publication of controlled dual-use technology.

In addition, the Academy recommended that the start date of the offence provisions within the Act be delayed by a further 12 months, a recommendation taken up by the Government.

Submission to the Senate inquiry—ongoing scrutiny of the implementation of the DTCA 2012

Prior to the passage of the DTCA Amendment Bill 2015, the Senate asked interested stakeholders to put forward submissions to comment on the Bill. Given that a failure of the Senate to pass the Bill would result in the more restrictive DTCA 2012 automatically coming into force the Academy’s submission argued there was a pressing need for the Amendments to be passed.

The main points made in the Academy’s submission were that the Act provided a better balance between meeting Australia’s international obligations and not unduly hindering scientists, and that the Academy was satisfied that substantive issues of concern that had previously been raised had been largely resolved through the implementation and consultation process.

The Academy accepts that since this submission was made further legitimate issues and areas of concern have been raised by scientists and others, and that these should be examined. The Academy expects further issues will come to light as scientists and research organisations have dealings with the DTCA. The Academy will continue to consult with all Fellows to determine where action is needed and in the development of any possible submission to the legislative review of the Act in April 2018.

Concerns about the impact of the DTCA

Who is raising concerns about the DTCA?

Despite the consultation exercise showing broad satisfaction with the proposed changes being made to the DTCA by the amendment Bill by research organisations and stakeholders, there continues to be concerns raised by some commentators and scientists. In recent weeks it has been claimed by some that the legislation is designed to intimidate scientists, could disrupt overseas collaboration, and could lead to unwitting scientists being the subject of criminal prosecution. Almost all of the concerns have been made by individuals rather than by research organisations or peak bodies. The Academy insists that concerns should not be dismissed and should be examined, and addressed.

What are the main areas of concern being raised?

Broadly speaking there are three main areas of concern with the DTCA:

  • Academic freedom and government regulation of research
  • Impact on overseas collaborations and Australia’s competitiveness
  • Uncertainty and confusion regarding the impact of the legislation

Academic freedom

There have been concerns raised that regulating the trade and supply of hardware, technology and intellectual property that has a primary or secondary (dual-use) military purpose will inhibit academic freedom, and introduces a new level of government oversight of research. While on the one hand there will always be some resistance to any level of regulation of research by some, on the other hand there are community expectations that the Australian Government and scientists in Australia should seek to minimise the chances of certain technologies with potential military uses ending up in the wrong hands. The Academy staunchly supports academic freedom, but also recognises the need for regulation in responding to such community concerns.

It is noteworthy that academic research does not operate outside of other legal and ethical restrictions. For example, there are already many legal and ethical restrictions on the conduct of research in Australia. This includes restrictions on the use of embryonic stem cells in research, on research involving genetically modified organisms, and on the use of humans and animals in research. These legal and ethical restrictions are in place so that scientific research is undertaken in a way that conforms to the expectation of the Australian community. The DTCA does place additional legal restrictions on some areas of science, requiring some scientists to seek permits before supplying certain military or dual-use technologies to those overseas.

It is too early to assess the full impact of the DTCA as it has only recently come into effect. A greater understanding of the impact of the DTCA on science will become over the coming months. If it becomes necessary the legislative review offers an opportunity to put forward recommendations on how the DTCA could be changed.

Impact on overseas collaboration and Australia’s competitiveness

From the initial trial of the Act, and from the experiences to date of university research offices preparing for the implementation of the legislation, it is anticipated that the DTCA will not affect most researchers. However, it will take some time for the full impact of the legislation to become apparent. For those researchers who are impacted, it is important to note that they can continue to supply, publish and broker military and dual-use technology provided they have a permit. Experience to date is showing that bona fide researchers working at Australian universities and medical research institutes working with bona fide researchers in low risk countries will usually be issued with a permit within 15 days of application. Permits can be multi-person, multi-year, covering whole projects and project teams.

Uncertainty and confusion regarding the impact of the legislation

Concerns have been raised within the sector on specific aspects of the DTCA and how it relates to researchers. Concerns include:

  • The legislation is long and complex and so there is uncertainty among individual researchers as to whether they are impacted by the legislation or not.
  • The Defence Export Control Office (DECO) online assessment tool indicating that permits are required when upon further investigation it is found permits are not required.
  • Confusion surrounding the definition of basic research and what research falls under the basic research exemption.
  • Confusions and inconsistency in the language in the DTCA and DSGL.
  • Reports of ambiguous information being provided by DECO.
  • Concerns that Australia’s laws are more restrictive than those in other leading science nations.
  • Impact on visiting students and colleagues from overseas.
  • Concern about the impact of the DTCA on specific areas of dual-use science, such as cryptography.

While some of these issues can be dealt with through providing better information to researchers in a timely fashion, some issues will require further investigation.

To date, many researchers that have had experience of working with the DTCA are finding it is not as onerous as had been expected, and that many researchers who were concerned that their research would be impacted are finding that they fall under one of the exemptions.

The next steps

An important amendment to the DTCA was the requirement to undertake a legislative review of the Act in 2018. The Academy is consulting with its Fellows on the impact of the DTCA with a view to further developing this interim position statement, and to develop a submission to the legislative review.


Footnotes

1 The key treaties, regimes and conventions Australia participates in are outlined here: http://www.defence.gov.au/deco/Regimes.asp and the four key multilateral export control regimes are outlined here: http://www.defence.gov.au/deco/Regimetable.asp

© 2017 Australian Academy of Science

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