Senate debates

Wednesday, 31 October 2012


Defence Trade Controls Bill 2011; Consideration of House of Representatives Message

6:05 pm

Photo of David FeeneyDavid Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | | Hansard source

I move:

That the committee does not insist on its amendment to which the House of Representatives has disagreed.

Photo of David JohnstonDavid Johnston (WA, Liberal Party, Shadow Minister for Defence) Share this | | Hansard source

Before the question on the motion is put, I wish to put the coalition's position with respect to amendment 9A, which the Senate successfully moved as an amendment to the legislation. From the outset, I wish to point out that the coalition will not be insisting upon amendment 9A. This is for a very good reason. I know some senators will be quite annoyed and upset about it, but may I say that, from the outset, the understanding by the government of the length and breadth and the practical application of this legislation has been under considerable question. Indeed, may I say, the government has imparted no confidence whatsoever to the Senate committee on several hearings and meetings or, indeed, to this chamber that it actually understands what it is doing.

It was put to the government that the wording of the Export Administration Regulations are identical to the wording contained in this amendment on which we are not insisting. The reason the amendment was put was for the government to explain in detail how it is that such an amendment would undermine and, to use a colloquialism, render fatal, the intent of this legislation. May I say in response, and this is not a reflection on or criticism of the minister in the chamber, that the government's response to that was extremely tepid and utterly unconvincing and we are left and were left at that time with no other conclusion than that this legislation is going to provide a more strict regime on fundamental applied and basic research than currently exists in the United States, for example.

However, having said that, and having said that the government's understanding and confidence in bringing this legislation forward are under question, the coalition errs on the side of caution because the subject matter of this legislation is so important. It should not be got wrong. Accordingly the Senate has inserted a two-year transitional period requiring certain things wherein the Senate Foreign Affairs, Defence and Trade Committee can on a six-monthly basis oversight the progress of the two-year transitional period. I would underline the fact that the minister has confirmed that, notwithstanding the wording of a number of sections relating to criminal sanctions of 10 years imprisonment that appear to be strict liability offences, he interprets them as requiring intent. That is how bad this legislation is, that he has had to get up in the chamber and say things that are on the fly, are on the Hansard, to correct the clear disposition of the bill.

Photo of Scott LudlamScott Ludlam (WA, Australian Greens) Share this | | Hansard source

Don't vote for it, then.

Photo of David JohnstonDavid Johnston (WA, Liberal Party, Shadow Minister for Defence) Share this | | Hansard source

Notwithstanding all that, we are left in the invidious position of having to support the government in dealing with this legislation because the alternative is to apply a degree of recklessness which we are beckoned to do from the far end of this chamber. We will not do that. We will work through the transitional period with or without the government, as the case may be, to make sure that there is balance and proper applicability in this legislation. That is our position. We think it is the correct position.

6:09 pm

Photo of David FeeneyDavid Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | | Hansard source

I begin by thanking Senator Johnston and the opposition for taking the view that they have taken that they will not insist on the amendment that passed this place on Monday. I make a few comments responding to some of the remarks of Senator Johnston.

This bill is not about restricting academic freedoms. Australians researchers will be able to continue to conduct sensitive research. They will only need a permit to transfer sensitive technology overseas where it could be misused. This requirement already applies to US researchers. A list of technology subject to export control, the defence and strategic goods list, is derived from the international arms control and non-proliferation regimes. The list controls goods and technologies that can contribute to military and weapons of mass destruction programs. In the wrong hands those goods could and would pose a significant risk to Australians and indeed to Australian national security. There will be no need for a permit for research conducted in Australia, including where overseas students are involved. By contrast, in the United States a permit is required for foreign nationals to use controlled technology in research. US exemptions for fundamental research apply only to controls on the output of research. Outputs will not be controlled in Australia, so it is not possible to apply this exemption.

In summary, as Senator Johnston quite accurately said, ultimately the government did regard the amendment that passed this place on Monday to be fatal to the legislation. That is why that amendment has failed to pass the House of Representatives. I am grateful that the opposition have taken the view they have taken and I urge that the committee does not insist on the amendment to which the House of Representatives has disagreed.

6:11 pm

Photo of Scott LudlamScott Ludlam (WA, Australian Greens) Share this | | Hansard source

I take what I think is the last opportunity for me to speak on this bill, which has been the subject of protracted debate not only here but in the other place all week. This bill is a pretty sorry story. Many things that started on a handshake between George W Bush and John Howard ended in tears and this is just another late, straggling example of that. That is how this bill started. Let us be clear that this is a bill about enhancing the trade in weapons and interoperability between weapons systems and defence research between Australia and the United States.

The bill has been passed back to the chamber for concurrence. I am someone who does not concur at all. I was persuaded by the arguments that Senator Johnston was raising in this very place only 48 hours ago. I will put it on the record, although I may later come to regret it, that over the last 4½ years I have come to develop a grudging respect for Senator Johnston. One thing you could say about the shadow defence spokesperson is that he is across his brief, he knows his brief. You bring a defence bill into this place and Senator Johnston will give it the attention it deserves for the reasons that he brought to bear when he was advancing a perfectly reasonable coalition amendment. It was not one that the Greens sought to move. Ours lapsed, it was not acceded to by the chamber, so we voted for the fallback position, I suppose, from my party's point of view, based on arguments run by Senator Johnston.

Senator Johnston, you must have turned out to be a pretty cheap date, because 24 hours later you have been rolled, through you, Temporary Chair, by the Leader of the Opposition, who knows, with greatest respect to Mr Abbott, considerably less about these issues than you do. It is therefore a bit hard to listen to you coming back in here waving your finger and condemning the government for whatever we are condemning them for this afternoon when you are participating in facilitating what you know and what everybody knows, and what those in the other place who lined up to slam this bill yesterday know, is a terrible bill. It is a badly drafted bill. It still has some major outstanding concerns notwithstanding the fact that we did by negotiation with all parties at least achieve some amendments on the way through. The Senate committee sent Defence and others back to the negotiating table to try and get it right and the government was told to bring the bill back when it was no longer a work in progress. We are aware that the committee was forced to table its report 20 days early

I understand that it is now fairly common knowledge. Senator Feeney was good enough not to try to obfuscate this the other night when I put it to him. This is all about a press conference in Perth in November with Secretary of State Hillary Clinton and Secretary of Defense Mr Panetta. We know that that is what this is about, and this is why process has been so savagely abused in here.

The committee was robbed of the opportunity to evaluate 10 pages of complex government amendments and, while I may be expressing a degree of dismay at Senator Johnston's actions tonight, I was genuinely surprised when the three coalition signatories to the dissenting report to the committee's otherwise very good report into this bill being a work in progress backflipped again in a magic 24 hours. Was there also a magic phone call from US ambassador Jeffrey Bleich? You would have to say that he has excelled as a lobbyist on this occasion in sticking up for the interests of the United States government. That is his job.

Our job is to stick up for Australia, for Australian researchers and for the Australian academic endeavour. The committee report did give some hope that amendments would be referred back to the committee, because a dissenting report signed by the Greens and the coalition could have ensured that that would happen. But no, that was not to be either. All the bluster, all the huffing and puffing, all the concerns and assurances provided to the universities eventually were found to be completely hollow. It is not surprising that Senator Johnston tips his hat to the chamber and then sits down again.

The bill was improved through the Greens' amendments, as I acknowledged with Senator Feeney and Senator Johnston the other night, drawing heavily from recommendations and suggestions made by the universities. What I would take to be a more accurate reflection of the outcomes of the round table is that we improved the bill. A number of very serious offences that the researchers of this country are facing have been postponed for two years. In addition, the bill was improved through the establishment of the steering committee that will evaluate the workings of the legislation, advise the minister and the research minister, and pilot the export controls regime. The steering committee will also crucially and explicitly evaluate whether Australian researchers are penalised by this legislation more than their US counterparts. That is something; that is not nothing. That is a substantive improvement to the bill. Thank goodness the coalition did not sell us out on those in the House of Representatives as well.

The bill was not improved as it should have been. We do not have to imagine this in the abstract because we had the language and we had the arguments put by Senator Johnston. The Senate passed an amendment that would have mirrored US exclusions for fundamental research. It is as simple as that. The amendment implemented the Senate committee's view that legislation should not put Australian researchers at a disadvantage compared with their US counterparts. The NTEU stated that they were appalled at the failure of the House of Representatives to legislate amendments to the Defence Trade Controls Bill 2011 proposed by their Senate colleagues only 24 hours earlier to preserve the freedom of intellectual inquiry for Australian university researchers. The NTEU stated quite correctly:

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.

This is worth quoting at length, isn't it? They went on:

The Minister for Defence, Senator Smith, appears to have a limited understanding of the nature of academic research, when he said the legislation does not impact on domestic research. The union’s objections to this legislation are that researchers might be committing a criminal offence, with a maximum of 10 years imprisonment, if they share their thoughts or results for what is ostensibly ‘domestically focused research’ with overseas peers and colleagues for review and or verification.

A very important question that has not been answered about this amendment and about Australian researchers being accorded the same exclusions from export controls as their colleagues still remains. I should say that Minister Smith is the only person in the course of this entire debate who stood up and unequivocally defended the bill. Good on him—that is his job, that is fine. Everybody else who has spoken to this bill has slammed it or perhaps damned it with faint praise, as I might perhaps summarise Senator Feeney's contribution. In explaining why he did not support the insertion of this amendment into the bill, the minister in the other place said:

…I have come to the conclusion that to do that would undermine, fundamentally, the basic structure of the bill and would not meet the standards required to ratify the treaty.

That is similar language to that which Senator Feeney just read in response to Senator Johnston's contribution.

The Congressional Record of the United States Senate of 29 September 2010 at pages S7722 and S7723—maybe Senator Feeney even has a copy of the record before him—states, only as a condition of ratification:

…Australia has—

(A) enacted legislation to strengthen generally its controls over defense and dual-use goods, including controls over intangible transfers of controlled technology and brokering of controlled goods, technology, and services …

I am taking the operative phrase in that statement from the US Congressional record to be '… enacted legislation to strengthen generally its controls …' over those things that I have listed. I am happy to table this, Senator Feeney, if that would be helpful, because I am going to put this question to you in a moment. As the Defence Trade Controls Bill 2011 meets these requirements in spades, irrespective of whether Senator Johnston's perfectly drafted clause 9A is included in the bill, can anybody advise me—either the government or the opposition; you are both voting to disregard the amendment that was passed the other night—of the detail of any standard or similar requirement for the control of intangible supplies of technology on the DSGL that the government of the US has imposed on, communicated to or requested of Australia in connection with future US ratification of the treaty? That is the question on which this all hinges, isn't it? I would like to hear anything at all that the minister has that has been put in writing that defines what the US means when it says that we need to 'enact legislation to strengthen generally its control over defense and dual-use goods'. If there has not been an insistence on any such threshold standards for 'strengthening generally', which I think is the phrase upon which this debate hinges, who has imposed them? They have been imposed domestically. Where did they come from? Senator Feeney, can you please provide us with an answer to that key question?

6:21 pm

Photo of David FeeneyDavid Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | | Hansard source

As it was on Monday, it remains today the fundamental assertion of the government that the insertion of clause 9A into this bill, as was proposed and executed on Monday, has the effect of weakening the legislation rather than strengthening it. Let me be plain: earlier today in this chamber you spoke earnestly, passionately and thoughtfully, as you usually do, about the uranium debate. I think it is worth noting that this is uranium that will be exported under International Atomic Energy Agency safeguards and a bilateral Australian safeguards agreement. Yet, by insisting on this amendment to this important counterproliferation legislation, that would enshrine in that legislation, you are proposing free rein for any person who has an intent to publish defence technology, to export this defence technology in electronic form to anyone in any country, and to do so in the absence of any safeguards. Indeed, this would apply to technology that is crucial to the development of nuclear weapons.

So, Senator Ludlam, what you are effectively doing is proposing the unrestricted, unregulated transfer of nuclear-related technology to anyone anywhere in the world. You are proposing to extend that to technology crucial to the production of chemical and biological weapons. We say that, by insisting on this amendment, you are in fact weakening the antiproliferation position of this government. As we have said all along, the amendment has the effect of fatally undermining the legislation.

In terms of the amendment and its particulars, I can go through the amendment clause by clause. I will try to do this swiftly. Clause 9A(a) describes the act as not applying to information in the public domain. Information in the public domain is already exempt from controls under the Defence and Strategic Goods List. Clause 9A(b) exempts any information that has been or is intended to be published in any publication to members of the public. In effect, this clause would mean that any person could decontrol sensitive material simply by the act of intending to publish it.

As I mentioned previously, once the material has been published and is in the public domain, it is not controlled under the DSGL. That would not only decontrol the sensitive information in Australia, it would also decontrol it across other countries that have an exemption for information in the public domain. It would weaken the current control arrangements by allowing tangible transfers of sensitive technology, which are already controlled. These implications are completely unacceptable to the government, have the potential to threaten Australia's national security and I cannot help but suspect would not comprehensively be supported by your good self. It is at odds with your stated objective, which is to strengthen the counterproliferation regime in this country and internationally.

6:25 pm

Photo of Scott LudlamScott Ludlam (WA, Australian Greens) Share this | | Hansard source

I suspect the minister has chosen his words carefully enough to force me to stand up again to refute that because you know, Minister, that not only do I wish to restrict the transmission of technology and the techniques behind nuclear weapons proliferation but also I am an advocate for the abolition of this technology altogether. Again, Senator Feeney, you have conducted this debate mostly in terms pretty measured apart from the last statement, which says that the amendment completely blows a giant hole through the entire bill and would allow people to start sharing enrichment technology with Iran. You know for a fact that we would not.

Senator Feeney interjecting

That is correct. I am verballing you there somewhat, Senator Feeney, but I completely understand the subtext of your comments. You may, in good faith, believe that we would not craft a vote for an amendment that allowed that. You could certainly be reasonably confident that Senator Johnston would not put his name to an amendment that allowed that to occur, so I just regret to observe that right at the late stages of the debate you have drifted into unhinged hyperbole, and that is a great shame.

I pay tribute to some of the people who have worked hard to educate and try to talk some sense to the MPs who are grappling with these quite complex and quite technical issues. Some pretended to hear them but we did hear what Professor Jill Trewhella, the Deputy Vice Chancellor of Sydney University, has been telling us. For example, there are many voices in this debate, but the deputy VC has been a leading advocate for just a cooling-off period and a period of time for, firstly, the committee to work through these amendments and then, ultimately, for the chamber itself to see reason.

Universities Australia have also played an important role in the debate, as have the NTEU, whose recent statement overnight I just quoted from extensively. I particularly thank Jill and some of her staff and the people around her who have worked tirelessly until pretty late at night for quite a period of time to try to get the MPs to see reason. The image in the House of Representatives last night said it all. The major parties are better at obedience than they are at law-making in the interests of our universities, our innovation and our research. And they knew it—that was the saddest thing—as Senator Bishop did the other night when he stood up and slammed the bill. My staff were quite critical of me when I returned from the debate. They said, 'Why can't you be as impassioned as Senator Bishop was in condemning the actions of his own government?'

The Independents and the Greens tried our best. I would also acknowledge those other members of the crossbench in the other place. We will continue to monitor these issues and I am at least pleased that we made the substantive improvements to the bill that we did, to buy some breathing space and perhaps, over a period of 24 months, create some space for second thoughts. I suspect this bill is going to need it.

Photo of Louise PrattLouise Pratt (WA, Australian Labor Party) Share this | | Hansard source

The question is that the committee does not insist on its amendments to which the House of Representatives has disagreed.