— Kevin B Korb

In passing the Defence Trade Controls Act 2012 the Australian parliament responded to concerns that the Act would impose too great a burden on scientific and technological research in Australia by deferring its enforcement for two years and setting up a Steering Group to review and propose amendments in the meantime. That time is up, and the Steering Group has issued its proposed amendments. Below is my submission to the public review of the amendment, which is finishing at then end of January, that is, the end of this week.

Submission in Response to the Defence Trade Controls Amendments Bill 2015 (DTCB)

The DTCB seeks to rectify some of the errors introduced with the passage of the Defence Trade Controls Act 2012 (DTCA). It goes about this by ameliorating some of the burden imposed on institutions and individuals created by DTCA in doing research on dual-use (not military) goods. In my view, the DTCB is misdirected and likely to fail to afford sufficient relief for many researchers and research projects, leading to tertiary education and research paying a very high cost for little or no benefit in the near to medium term. The correct remedy would be to rewrite the DTCA so as to include provisions closely comparable to the corresponding UK and US legislation that exempt publication, scientific research and higher education involving dual-use goods. For example, the UK Export Controls Act 2002 (section 8) explicitly exempts:

the communication of information in the ordinary course of scientific research; the making of information generally available to the public; or the communication of information that is generally available to the public

while nevertheless allowing a Ministerial override in exceptional cases. The DTCA contains no protection for ordinary scientific research and education. The Steering Group's proposal is meant to address some of the defects thereby introduced, but clearly the most direct and effective addressing of the defects would be to write a comparable clause into the act rather than try to treat all of the symptoms of illness that the lack of the clause must necessarily introduce. By the latter approach the illness will remain and any failure to see or predict a nasty symptom will only be treated retrospectively, after the damage has been done.

The Chief Scientist's Steering Group claims that part of its mandate is to see that researchers are not disadvantaged in comparison with the United States and the UK. That is an objective that simply cannot be met without adopting equivalent legislation.

Having registered my general objection to the approach of the Steering Group, I will review some of its specific proposals. 

The greatest attempt at relief of the DTCB 2015 appears to be the exemption for publication and pre-publication of dual-use goods, distinguishing these from the international "supply" of goods. This will indeed enable some research to progress across many areas which otherwise, under DTCA 2012, would be impossible. It appears that the Steering Group considers this to be relief enough, but massive problems remain. In particular, electronic and other transmissions of new research in dual-use goods which are not directly related to publication or an attempt to publish would remain controlled, and unpermitted communications punishable by prison, even though these are a part of the ordinary course of scientific research. A great deal of existing friendly communications with international research collaborators, potential collaborators, students, etc. will be criminalized. Also included as "supply" are ordinary scientific conferences and meetings, if they neglect to publish proceedings. Invitations to visit and give talks at leading institutions around the world will have to routinely be turned down by researchers in controlled areas, unless they take the opportunity to never return to Australia. [It should be noted that there is a specific exemption for exclusively oral communications; however, it is typical that pdf notes are projected on host equipment, which would be a criminal act of "supply" under the legislation.]

Since our institutions are pushing hard to internationalize our research collaborations and educational activities, the treatment of them as criminal actions when outside the direct control of the Department of Defence will seriously handicap both research and education in dual-use areas. Educational institutions will no longer be able to treat their materials as proprietary and instead be forced to publish them. Pre-publication collaborative research, on the other hand, is always an iffy project, and publications, or even attempted publications, are no sure outcome. If the activities needed to generate good research are controlled, it will not much matter that its end product (publication) is uncontrolled: there won't be anything to publish.

The option to emigrate, if taken, will have to be taken permanently, by the way, without any opportunity to return to visit friends or family, unless the academic is willing to face arrest for the "crime" of having pursued her or his career overseas. Indeed, it would be conceivable that Australia should seek extradition of such notorious criminal academics. It's also clear that proprietary dual-use industrial research, which is hardly ever published, must come under the control and permit regime, meaning that the Steering Group's amendments offer industry no relief at all.

The Steering Group's Guide claims that the Defence and Strategic Goods List (DSGL) is narrowly defined so as to minimize its impact on civilian research. As an example, they point out that restrictions on research on robust computers designed to deal with temperature extremes are limited to those that fall outside the wide bounds of -45C to 85C. But the DSGL in this respect suffers from the same kind of flaws as the approach taken by the Steering Group: it excludes from its onerous restrictions research which its drafters happen to know and think about, but capturing a great deal of potential civilian research that hasn't occurred to them. For an example: fault-tolerant computing is a general concept of wide civilian applicability. It is covered as dual-use in DSGL, but with exclusions of the above type. For a particular example, error detection and correction in "main storage" is excluded from the DSGL restrictions. However, it apparently did not occur to the drafters that many computers have error detection and correction outside of main storage, in particular in components involved in internal and external communications. As the DSGL currently stands, research on such fault-tolerant aspects of computing is regulated, even if that research is effectively the same as research done to improve "main memories".

When I scanned my faculty's (Monash Faculty of IT) postgraduate classes, I found about one-third them touched upon or directly treated research areas covered by DSGL's dual-use list. The DSGL is emphatically not a narrow list impinging upon only a few exotic research areas.

To be sure, the exact scope of the DSGL is unclear. A key example (for me, at any rate) is robotics: robots are explicitly controlled as a dual-use good (at least when coupled with the usual image processing). Since software connected with a controlled dual-use good is automatically controlled, and since any artificial intelligence software may be used in robots with image processing, the DSGL seems to imply that all AI research is controlled. I have, many months ago, asked DECO whether this is correct; I have received no answer. On the face of it, however, DTCA and DTCB are set to eliminate Australia as a serious player in information technology. 

Under both the existing and the proposed legislation coverage of the DSGL is subject to the interpretation of the Department of Defence. Since the DSGL is both ambiguous and has an overly broad coverage of dual-use goods, as argued above, the proposed legislation will inevitably provide the Department of Defence the power to choose to enforce, or to not enforce, penalties against researchers whose projects may be interpreted as falling under DSGL controls. This will inevitably result in discouraging research in any such area and will also provide the Department of Defence apparently arbitrary powers to persecute or punish civilian researchers at will or whim. 

The reassurance that the Criminal Code Act 1995 would make unlikely a successful prosecution of those who "diligently" follow compliance rules but make some mistake is very little comfort: 1) although the proposed amendments reduce the compliance costs of DTCA 2012, those costs remain very high; 2) the latitude in interpreting DSGL means that an innocent mistake may well be interpreted as an intentional violation of the law; 3) prosecutors in all legal systems around the world have on at least some occasions abused their power and prosecuted people, not to enforce the law, but for political or private purposes that may be served regardless of the outcome of the prosecution.

The Steering Group refers to the DSGL exemption for "basic scientific research" and information that is already in the "public domain", suggesting that in such cases research communications will thereby not be subject to control by the Department of Defence. The DSGL does make these exemptions and also one for patent applications. Neither the UK nor the US found those exemptions to be adequate and expanded the scope of exemptions in their further legislation, as I showed at the beginning. In my view, they have good reasons not to rely upon the DSGL alone. The Steering Group omitted mention that the DSGL restricts the exemption for basic scientific research to research which is not also intended for application. However, the ARC, universities and other funding organizations almost always demand that research be conducted with a view to its application, suggesting that the DSGL exemption will hardly ever come into force. It has also been pointed out that the administrative burden of determining what is and what is not in the public domain across hundreds of research areas by both research organizations seeking to be compliant and by the Department of Defence itself in monitoring compliance will be enormous.

 In conclusion: 

There is no doubt that some new legislation is needed to deal with "intangible supply" of military technology. It is also appears right that dual-use goods should come under the control of such legislation, since by definition they may be used in military applications. But nowhere has a serious case been made that the same protections for education and academic research that the UK and the US afford themselves should not be made available to Australians and Australian institutions. Without those protections not only will civilian research in dual-use goods suffer from onerous compliance costs, those research and educational areas will inevitably go into significant decline, damaging the wider economy for at least as long as it takes the society as a whole to come to grips with the issue and change the law appropriately. And there will be no guarantee that the damage that accrues in the meantime can be undone.

The proposed amendment alleviates a few of the problems introduced by DTCA 2012. It manifestly fails in its stated goal of putting Australia on an equal footing with its trading partners, the US and the UK. This failure will cause serious and long-lasting damage to Australian education and research, unless it is addressed now.

I think Australia's Chief Scientist does not deserve an F for his
efforts. He should, however, be encouraged to try a little harder and
apparently needs more time to do so.