Submission – Defence Trade Controls Amendment Bill 2023

The Australian Academy of Science (AAS) and the Australian Academy of Technological Sciences and Engineering (ATSE) jointly provided a submission on the exposure draft of the Defence Trade Controls Amendment Bill 2023.

When enacted, the Bill will be accompanied by regulations. It is our strong view that the intent of this Bill could be subverted by changes to the regulations after enactment, which can occur without consultation or scrutiny, for example criminalising some activities that the research community considers normal, indeed desirable, for a researcher to develop their ideas and outcomes.

Accordingly, we propose that the draft Bill be amended.

• It is essential to include an exemption for ‘fundamental research’, noting that the final definition needs to be tailored to Australia’s context and could align with the US definition in the National Security Decision Directive 189 (NDD-189):

“Fundamental research is defined to mean basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community, as distinguished from research the results of which are restricted for proprietary reasons or specific U.S. Government access and dissemination controls.”

We recommend that:

• Defence undertakes further engagement and co-design with the science, technology, engineering and mathematics (STEM) sector, including Learned Academies and researchers, to improve awareness, understanding, implementation, and compliance with the legislation, to mitigate potential unintended consequences on research and development.
• Educational resources, training and easy-to-use decision guides must be developed so that researchers can determine if their work is captured by the legislation and Defence and Strategic Goods List (DSGL) and if they need to apply for a permit. These resources must be co-designed with the research sector and be made available before the legislation comes into effect. They will be a vital tool to avoid self-censorship by the research sector, which can lead to missed opportunities and benefits for Australia.
• Impact monitoring on research is embedded in reviews of the legislation to capture and address unintended consequences.
• Evidence-based policy-measures respond proportionally and meaningfully to threats and/or risks.
• Exemptions are included to avoid adverse impacts on the composition of the research workforce and Australia’s research collaborations. The proposed legislation risks sending signals that discourage the hiring of international experts, enrolling of international students in Australian institutions, or initiation or continuation of international research collaborations outside of the US and UK. It could also deter foreign persons from coming to Australia to work or collaborate. Australia welcomes and relies on foreign students and researchers who make up a significant proportion of the Australian numbers in the future to meet national needs.

Governments have a responsibility to consider the effect of legislation on research and its culture and to measure the impact of security measures on the research and development system. As the changing geopolitical environment presents risks to the quality research and development Australia relies on, as well as its applications (both civilian and defence), the national security network and the research community must work together to forge an open dialogue regarding future legislative and policy developments.