Jail threats met with call for ‘balance’ on research sharing

With potentially worrying changes to Australia’s research security arrangements odds-on to proceed, universities want clarification on amendments

November 23, 2023
Two police officers walk alongside a steel and concrete fence erected around the Sydney Convention and Exhibition centre at Darling Harbour in Sydney to illustrate Sharing ban bill could mean jail for researchers
Source: Getty images

Proposed legislation that threatens Australian researchers with jail time if they share details about sensitive technology with foreigners other than Britons or Americans has sparked fierce debate, but its passage is seen as inevitable.

The proposed amendment to the Defence Trade Controls Act is a key plank of the Aukus agreement between the three nations, and comes in a policy area where Australia has set the pace globally in recent years, meaning it could be a sign of reforms to come elsewhere, even though a leading vice-chancellor has described the country as an example of “how not to do” research security.

The amendment creates three criminal offences, up from one at present, for unauthorised international sharing of knowledge or services relating to more than 100 technologies with potential “dual use” military applications.

Penalties are severe, with offenders facing 10 years’ imprisonment or fines of A$782,500 (£409,200) – or both – if they supply information about technologies on the Defence and Strategic Goods List (DSGL) without permits or in breach of permits.

Researchers already need permits, although an exception applies if they share information with citizens or permanent residents of 25 friendly nations on a “foreign country list”. The proposed amendment curtails this exception and increases the range of activities that attract criminal prosecution.

But it also creates blanket exemptions for information sharing with US and UK citizens and allows for new exceptions to be specified in regulations attached to the act.

Defence officials predicted less paperwork as a result. “Our early analysis shows that the regulatory burden would probably be decreased because of the time the system currently spends dealing with…permit requirements for exports of technology and information to the US and UK,” chief defence scientist Tanya Monro told an Australian Academy of Science (AAS) forum.

“Our conservative estimates imply that we’d be talking likely a few dozen such permits across the whole nation each year.”

Professor Monro described “a paradigm shift from excellent science being about working with the best in the world, to excellent science being working with the best in the world who share our values so that it can’t be used against us”.

But representative body Universities Australia (UA) said 11 of its members’ top 20 research collaborator nations were not on the foreign country list, and thousands of current partnerships could require permits.

The AAS said “unintended consequences” of the amendment could stifle collaboration with countries other than the US and the UK.

Chief executive Anna-Maria Arabia said it was unclear how the legislation would affect Australia’s relationship with international partners that had relationships with countries excluded from the foreign country list – particularly China.

Passage of the legislation is considered essential to convince US legislators to approve the Aukus agreement, which would lower barriers to defence and research cooperation between Australia, the UK and the US. “I think it’s almost certain that this amendment will make it through parliament,” Ms Arabia said.

Vicki Thomson, chief executive of the Group of Eight group of research universities, acknowledged “challenges” in the proposal. “But it’s worth working through the complexities of the legislation so that we do not have the barrier to research that will exist if we don’t.”

She said the amendment would enable Australian participation in “pillar two” of Aukus, which involved collaboration in areas such as quantum technologies, autonomy and advanced cyber, and was the “main game in town” for universities. “The legislation won’t be discussed and debated until next year, and it will go through a process. So we’ll be able to iron out, I suspect, a lot of these issues.”

The Aukus plans still require US congressional approval and potentially changes to UK national security legislation. University of Edinburgh principal Sir Peter Mathieson, the lead Russell Group board member on security issues, said some compatriots considered Australia’s approach overkill. “When we in the UK are thinking about how not to do it, lots of people talk about Australia,” he told the AAS symposium.

But Sir Peter added that he expected an “upsurge in the anxiety about international security” as the looming UK general election fostered “increased political gameplay and point scoring”.

Ms Arabia said she worried that Australia was taking a “black-and-white approach” to its defence trade controls regime. She said the academy wanted “further consideration of the nuance” during consultation on the bill.

Key issues include the treatment of dual national researchers and whether research teams will need permits for their foreign PhD students. This is considered unlikely because doctoral students will be deemed to be undertaking basic research, which requires no permit under the DSGL.

But commentators worry that the DSGL’s definition of fundamental research is too vague to shield students and teams from potential prosecution, and want the definition tightened up.

UA also wants a “clear and functional” basic research exemption inserted in the act’s regulations.

“Achieving the right balance between fulfilling national security requirements and supporting research collaboration is in our mutual interest,” UA said in a submission on the proposed amendment.


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