Fears over bill making illicit research sharing a crime

A draft defence bill aimed at the exclusive exchange of technology with the United Kingdom and the United States while curbing any other ‘foreign’ access has set off alarm bells in Australian academic circles because of what academics say is the potential for ‘criminalising’ activities the research community considers normal.

Among other tough clauses, the proposed law creates at least three criminal offences aimed at restricting the sharing of defence technology to foreign persons inside and outside Australia while allowing licence-free sharing among the three AUKUS (Australia, UK and US) partners.

The proposed reforms would create an export-licence-free environment to support industry, higher education and research sectors in all three countries by, among other measures, reducing barriers to technology transfer and costs of trade, according to a statement posted on the Defence Department’s website.

The reforms are designed to promote cooperation, collaboration and innovation between Australia, the UK and the US and are a critical step in building a seamless industrial base between AUKUS partners, it said.

The public consultation on the draft bill ended on 17 November.

The latest measures aimed at protecting sensitive technology come in the wake of reports in 2021 that the Australian Security Intelligence Organisation (ASIO) had discovered a ‘nest’ of foreign spies operating in Australia who had managed to recruit a government official with security access to classified defence technology.

Back then, the ASIO Director-General of Security Mike Burgess ordered dozens of foreign agents be removed from the country.

A report by the country’s The Australian newspaper at the time quoted sources suggesting the country behind the spy ring was not China, but Russia, which is said to have traditionally regarded Australia as a backdoor to US intelligence.

Submarine deal

Earlier this month, the country’s current Minister for Defence Richard Marles dubbed the new proposed law a “decisive step forward in delivering nuclear-powered submarines and further technology sharing under the AUKUS framework”.

The AUKUS partners entered a multi-billion dollar arrangement earlier this year in which Australia is to acquire conventionally armed, nuclear-powered submarine (SSN) capability through the Australia-United Kingdom-United States (AUKUS) enhanced security partnership.

As per the deal, as early as 2027, the United Kingdom and the United States plan to establish a rotational presence of one UK Astute Class submarine and up to four US Virginia Class submarines at HMAS Stirling navy base near Perth, Western Australia.

“This is pivotal legislation which is critical for establishing a seamless industrial base with our AUKUS partners,” Marles told a press conference in Canberra. “At the heart of this legislation [are] game-changing reforms for the Australian defence industry, which should see the removal of burdensome red tape with the UK and US.”

As per the new proposed law, supplying proscribed technology from the government’s Defence and Strategic Goods List (DSGL) to any foreign national who is not British or American would be deemed a criminal offence.

Alarm bells

Alarmed by this, the Australian Academy of Science (AAS) and the Australian Academy of Technological Sciences and Engineering (ATSE) have jointly shared their concerns and suggestions with the Department of Defence about the draft bill.

“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,” said the joint statement.

AAS president Professor Chennupati Jagadish said in a speech on 14 November that Australian universities are reliant on international collaboration, and a third of research students came from overseas, mainly China. “The global science system is more vulnerable than it has ever been due to decisions taken by states as they respond to security challenges,” he was quoted as saying by Reuters at a conference in Canberra.

There is also the concern that the bill does not balance national security and national interest derived from Australia’s research enterprise. Some commentators say it is critical that the research community is genuinely engaged to mitigate unintentional adverse impacts of the bill.

According to the two academies, establishing a licence-free export environment with the US and UK will bring benefits to many researchers and companies currently captured by the act.

However, the expansion of the DSGL offences – particularly 10B (re-export) and 10C (DSGL services) – will create a level of uncertainty and doubt about how changes to Australia’s defence trade controls framework to align with the US environment will impact Australia’s research collaborations with countries outside of the trilateral AUKUS agreement.

“Australia on its own is not globally competitive in many of the areas on the Defence and Strategic Goods List (for example, advanced materials, electronics, sensors, photonics, lasers, navigation, and aerospace), and relies on partnerships to gain access to knowledge, technology and capability.

“That means that intentionally or unintentionally limiting collaboration with key partners and individuals would result in insufficient homegrown know-how for us to benefit from the quantum of expertise we need; Australia’s sovereign capability in advanced technology areas would be at risk,” the academies warned.

Exemption for fundamental research

The Canberra-based institutions have recommended that 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 US Government access and dissemination controls,” noted the joint submission.

The two academies recommended that training and easy-to-use decision guides must be developed so that researchers can determine if their work is captured by the legislation and the DSGL and if they need to apply for a permit.

“They will be a vital tool to avoid self-censorship by the research sector, which can lead to missed opportunities and benefits for Australia,” it said.

There are also the fears this draft law would discourage aspiring foreign students and scholars from pursuing higher education in Australia.

“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 said.

The AAS and ATSE have proposed to convene Australia's leading scientists and thinkers in fundamental and applied science, technology and engineering to provide further input on the impacts of changes to defence export controls framework on research and development and the support needed for STEM researchers to understand obligations.

The academies have welcomed the commitment to a three-year review of the legislation, followed by a five-year review cycle.

The Australian government has announced it will be consulting with stakeholders on additional exceptions to be included in the Defence Trade Controls Regulation 2013 and DSGL from December 2023 to early 2024.