Group of Eight (Go8) SUPPLEMENTARY submission to Review of the Defence Trade Controls Act 2012

19 Jul 2018

Group of Eight (Go8) SUPPLEMENTARY submission to Review of the Defence Trade Controls Act 2012

I write further to the Go8’s 31 May 2018 submission to the Review of the Defence Trade Controls Act 2012, to provide a supplementary response, following on your invitation of 19 June 2018 seeking additional views.

I understand you are calling for views on issues and proposals raised during the initial consultation period, and would now like to specifically address the submission made to the Review by the Department of Defence (DoD).

The Go8 supports the need for Government to ensure adequate safeguards for the trade in defence related technologies. It is the belief of the Go8 that this outcome has to date been achieved via the close working relationship between the university sector and the DoD through the Defence Trade Controls Act.

The Go8 notes that the effectiveness of this consultative and collaborative relationship between the DoD and the university sector is highlighted in the DoD submission to the Review. However, in the DoD submission both the basis for their suggested amendments to the Act – an evolved national security environment – and the nature of proposed changes -  including substantial new powers for the DoD - have not been raised in detail with the university sector by the DoD.

The Go8 asserts that we cannot afford to return to the early days of the DTC Act before the 2015 revisions, where imprecisely developed legislation resulted in significant effort for the research sector, the government and others to arrive at effective export controls safeguarding Australia’s national interests.

In addition, the Go8 believes that the DoD’s recommendations as they stand have the potential to affect our researchers’ capacity to carry out research integral to Australia’s future, our community’s well-being, and our international reputation and competitiveness.

The Go8 concerns with the DoD submission are outlined in the following key points:

1)      Our national research capacity, underpinned by the Go8’s consistently highly ranked efforts, depends crucially on our researchers’ ability to collaborate both domestically and internationally with each other, industry, government and other stakeholders. Research cannot operate in a vacuum, it builds on major and iterative discoveries, current and past. The fulfilment of that research into solutions, products and cures often relies on partnerships at the international level.

a.       This is what is primarily at stake when the DoD proposes the introduction of new measures to require researchers and others to apply for permits in additional, in fact unknown, circumstances – especially in relation to uncontrolled technology; to prohibit the supply of both Defence Strategic Goods List (DSGL) and uncontrolled technology; and to restrict DSGL technology being published or being supplied in preparation for publication.

b.       The DoD’s proposed measures if enacted have to potential to deter, if at the least only due to concerns over delays in processing times: Australian participation in certain areas of research; Australian participation in key international research collaborations; foreign universities, businesses, governments and others from collaborating with Australian researchers and research organisations; talented and highly sought after domestic and international students from undertaking research study in Australia; researchers from even publishing and transferring their knowledge; and engagement in existing and future R&D university contracts.

2)      The extension of controls to ‘uncontrolled’, unspecified technology would create significant uncertainty for researchers and those with whom they work, given the possibility that the DoD may declare at any point in time that a technology is ‘emerging sensitive’ and subject to controls on transfers.

a.       It is unclear how the DoD proposes to manage this extension of controls, whether its intention is to iteratively list such technology on a circular additional to the DSGL list, or to work case by case with stakeholders to identify affected technology as it emerges or projects are identified as relevant.

b.       It is unclear if such provisions would impact retrospectively, potentially affecting and compromising significant and well-developed research projects and collaborations.

c.       The uncertainty would be at direct odds with the provisions so far for researchers to be alerted and informed of the potential ramifications by the existence of the DSGL list which offers some basis for planning and for the appropriate decisions and steps to be taken by universities.

3)      We question the advisability of unmitigated extension of controls requiring the application of permits to supply or transfer DSGL or uncontrolled technology to foreign entities. This is especially concerning given the DoD highlights foreign persons in Australia creating situations potentially prejudicial to Australia’s interests (Paragraphs 31, 33 and 36 of the DoD submission).

a.       Without careful and well-advised articulation of which foreign entities are of interest, a wide range of people would be in question – including foreign born Australian researchers, international PhD students in Australian universities, visiting Fellows or other research colleagues from overseas, multi-national companies with whom universities would otherwise be legitimately engaging.

4)      Direct and indirect compliance costs, already considerable in our universities to deal with what is considered a tenable, reasonable situation under the current Act, would increase dramatically. The diversion of university resources and efforts to administration and to ensuring compliance would be unsustainable.

a.       A related issue will be the degree to which the Government itself can keep up with the rising need for administration, and the likely delays in response times – detrimental in circumstances where Australia retaining an edge or dominance in relation to specific technology is reliant on speed of engagement, dissemination and publication – as numbers of applications for permits or calls on DoD for advice and assistance increase substantially.

5)      DoD’s proposals have the potential to significantly impact not only the course of researcher activity, affecting choices as to which research our universities and researchers engage in, but the fundamental academic freedoms upon which the quality and diversity of our research is reliant. Constraints on publishing alone present a difficulty for researchers; expanded powers for the Government to enter, search and seize would be unwarranted given the sufficiency of current powers and highly inconsistent with those academic freedoms.

The Go8 seeks to continue to engage constructively in the review of the Defence Trade Controls Act. If you would like further detail regarding any of the issues raised in this supplementary submission by the Go8, then please do not hesitate to contact me at or 02 6175 0700.