— Kevin B Korb

In October 2012 the Australian parliament passed the Defence Trade Controls Act. The stated purposes of the act are unobjectionable: implementing the prior Australia-United States Defense Trade Cooperation Treaty, simplifying defence-related trade between Australia, the US and the UK, and tightening the regulation of intangible transfers of military goods, reflecting the growth of the internet in communications. Unfortunately, these good intentions have led the Australian government to adopt an extraordinarily broad definition of military goods and to impose an impossibly harsh regulatory regime on activities concerning them, to the point that what is today ordinary academic research into, for example, Bayesian network technology may tomorrow become a criminal activity subject to 10 years imprisonment. It is an act that can legitimately be called intellectual vandalism. Indeed, some academics have already abandoned long-pursued research projects out of fear of the Act being used for retribution, making it a means of intellectual terrorism.

The Defence and Strategic Goods List

One support for the act is the Defence and Strategic Goods List (DSGL). The DSGL lists goods targeted for regulation that are strictly military and also many goods which could be put to military uses, so-called dual-use goods. These latter include a huge variety of things, including: bacilli and viruses, plant pathogens, metallic alloys, carbon fibres, neural computers, optical computers, vector and other high-performance computers, optical telecommunications, signal processors, fault-tolerant systems,¹ image processing, cryptography, and, of most interest to us, robotics. The DSGL explicitly incorporates all software which is designed or modified for the "development, production or use" of the goods. This means that all software that may be used to drive robots are covered by the list and by the Act using the list: all software that can be used for intelligent decision making and analysis, which clearly means all of Bayesian network technology, not to mention all of computational statistics, data mining and artificial intelligence generally.

The Act's intent is to regulate foreign access to new research in military and dual-use goods. While all of the dual-use goods could potentially be used in military applications and controlling such uses is a worthwhile objective, all of them also are used in non-military business, industry and governance, and these civilian uses are vital to the economy and prosperity of the nation. Therefore, a reasonable balance must be struck between supporting research in these areas and controlling access to the research. As the Act stands, it is clear to us that these matters are not in balance.

 Australia Prepares to Eat its Brains

A key feature of the Act is that it requires prior permission to communicate new research to a foreign national in any of the nominated areas. This includes, but is hardly limited to, publishing research in academic journals. As many submissions on the bill to the Senate Committee on Foreign Affairs, Defence and Trade point out, this requirement implies that the Department of Defence (DoD) would need sufficient expertise across all of the domains listed in the DSGL to judge whether or not proposed research would require a permit. Plausibly, this is a level of expertise which the DoD does not have, nor will ever have. But the difficulties with the Act go far beyond the need to hire thousands of experts to make permit judgments upon research and education.

Obtaining prior approval for each research project and, possibly, each research communication would put an end to a very large amount of research activity in Australia, directing researchers, students and subsequent economic activity elsewhere. Permission would be required to publish across a huge range of areas under active research in the university sector. Without a clear opportunity to publish, most academics would choose not to undertake research projects in these areas, meaning that ARC and NHMRC projects would not even begin without prior approval from the Department of Defence. The Act provides no guidance as to how the DoD should make judgments about research which has yet to be conducted. Many ongoing collaborations with overseas institutions would need separate approvals or would cease. Since about half of enrolled postgraduate students are foreign nationals, for the most part without permanent residency, the requirement for prior permission to communicate new research to them would also cripple postgraduate coursework.

PhD and Masters theses have always been published by the institutions granting them; in consequence of the Act, either this practice would have to be abandoned, and the contents of theses in the nominated areas suppressed — which would certainly give Australian research a unique voice in the world — or prior approval for publishing as-yet uncreated new research would have to be obtained. Note that this restriction would apply to all postgraduate thesis work in dual-use domains, not just that involving foreign students.

As a crude index of how the Act unaltered will impact the activities of my own organization, the Faculty of IT at Monash University, I surveyed all masters level coursework units (5000 series units, ignoring thesis units) for topics proscribed by the Act (i.e., found in the DSGL). Note that it is an imperative that researchers who teach (which describes myself and almost all of my teaching colleagues at Monash) should incorporate new research into their own teaching. Of necessity, therefore, if a topic matches a dual-use good, it is regulated by the Act. By my count 18 out of 61 classes would come under the provisions of the Act, requiring prior permission for each international student enrolled. (The DoD Explanatory Memorandum makes it clear that individual permission is required — short of Ministerial intervention!) The main areas impacted are: security, software usable for controlling robots, telecommunications technology and high-performance computing. No doubt a similar proportion of our degree by research topics would have to be pre-approved or abandoned. The disruption to Monash FIT’s educational activities will be severe.

The Strengthened Export Controls Steering Group to the Rescue

Amendments to the Bill were proposed by the Senate Foreign Affairs, Defence and Trade Committee in October 2012 which would appear to be sufficient protection for the ongoing research and educational activities of the tertiary sector. Alternative amendments might be derived from the UK Export Controls Act, which again protect public research and education. The corresponding US International Traffic in Arms Regulations also contain a corresponding exclusion, Section 120.11. The Australian Act contains no such protection (despite the extraordinary gobbledygook produced by the US Ambassador to Australia on the subject; see item 8 on the Committee's submission page). The accompanying Explanatory Memorandum does list some exemptions, relying upon the DSGL. The DSGL exempts technology that is in the public domain, required for patents or is basic scientific research. The Department of Defence reckons that this is sufficient protection for tertiary education and research: "With the exemptions ... Defence anticipates that these controls will apply only to very specialised and high-end research" (Explanatory Memo). There are a few substantial problems with this thinking, however. The administrative burden of deciding what is already public and what is not, covering individual research publications over something like 1/3 of Australia's engineering and IT work, would probably suck up a significant percentage of Australian GDP forever. Actual scientific research, while building upon what is in the public domain lives and grows according to what it adds that is new, and so it will not generally be public domain. However, according to the Defence Explanatory Memo (footnote 16), basic scientific research excludes research "directed towards a specific practical aim or objective." So, presumably university research is in the clear. What perhaps eludes Defence experts is that a very large amount of research at universities does have a practical aim or objective. Indeed, the endless waves of "Excellence of Research in Australia"-like programs that regularly inundate academic life here are always trying to pump out information about the wider impact of research on the community. Academics are constantly being badgered to prove that their research has near-term practical impacts and objectives. I suppose an unintended salutary effect of the Bill could be to discourage academics from focusing too much on the immediate benefits of their work! Be that as it may, probably most university research comes with intended applications, and so is covered by the legislation.

In consequence researchers right now must reckon with the possibility that the communication of their efforts, whether in teaching, supervision or publication, may result in 10 years in prison.

Many parties to the discussions, such as Universities Australia and the National Tertiary Education Union, have noted the disparity in protections offered by the UK and the US compared with that on offer in the DTCA for Australians. The consequence of their raising their concerns has been a suspension of enforcement of the Act for two years and the founding of the Strengthened Export Controls Steering Group, headed by Australia's Chief Scientist Ian Chubb, to investigate and test the consequences of the Act with pilot studies. The Steering Group has roughly equal representation from Defence (and Defence industry) and academia. They are empowered to make recommendations. Some people appear to think this answers all of the concerns raised above about the legislation. But until concrete recommendations are made, and rather more importantly, acted upon by Parliament, the university sector is operating in the dark. We do not know which of our research and pedagogical activities will in the near future be prosecuted as criminal. Given that now simply posting classified information on the internet in the public interest is being trumpeted as "assisting the enemy" (Julian Assange, Edward Snowden), it is not much of a stretch to imagine the publication of research on ordinary, but dual-use, technology soon being called assisting the enemy as well.

Three outcomes seem now to be possible: (1) the law may be revised to accord with the corresponding legislation in the US and the UK; (2) the law may be left as is, but its provisions not enforced with regard to most research of a non-military nature; (3) the law may be left as it is, and its provisions enforced in a wide-ranging way. If the first option is realized, then the research and teaching environment will remain much as it has been, and the Australian nation may get on about its business. If option (3) is realized, a large portion of Australian research will simply stop. The tertiary education sector will be massively disrupted and its international reputation will collapse, outside of fields which would appear to be free of the regulations implied by the Act, such as the Arts. Much of engineering, the physical and medical sciences, and information technology would be finished in Australia. Option (2) implies less immediate impact. However, the continuing possibility and threat that an administration has only to change its mind about enforcement would have a significant chilling effect on many researchers. The choice of research area would have to weigh the opportunity for administrative interference and the ultimate potential for criminal sanctions should a researcher or her or his research rub the DoD or the government of the day in the wrong way. Over the long term, research and education in Australia would be severely crippled.

Bayesian Intelligence finds that the unamended Defence Trade Controls Act 2012:

¹ CORRECTION: Originally, I had the following parenthesis here: "(including computers with error-detecting memories, which long ago became nearly universal)". However, I have in the meantime noticed that the DSGL has an explicit exclusion for this case, in Note a of 4A003.a on p. 165. My apology for not noticing this in the first place.