DTCA Cometh

artist Nick Watkins

21 March 2016, Kingston, CA

*Updated 23 March 2016 – At the time of publishing, Dr Alex Zelinsky was unavailable for comment -that has since changed.

by Chris Murray

A member of the CIA helps evacuees up a ladder onto an Air America helicopter on the roof of 22 Gia Long Street April 29, 1975, shortly before Saigon fell to advancing North Vietnamese troops.

When Defence Report published an article entitled The Aussie Defence FUBAR, it hit a nerve Down Under. Since the publication of that article DefRep has been inundated with emails from individuals under the coming DTCA umbrella. The emails received somehow conjure images of that last helicopter taking off from the roof during the Fall of Saigon in 1975. The aim here will be to try to give some quick and dirty coverage to the key areas that have emerged form these emails and give readers on overall broad stroke appreciation for the depth of this situation.

One of the most striking features is not the indignation but fear felt by these individuals, which is why most of DefRep’s sources have asked to remain anonymous. These are well-reasoned and learned individuals not prone to hysteria and are incredibly well versed on the details of the DTCA. Furthermore they understand better than most how this legislation will affect their little corner of research or academia. Their fear, therefore, should be viewed as a serious cause for alarm.

Conflict of Interest at DoD

One issue raised by DefRep sources is the conflict of interest present in the actual administration of the law. This would see the Defence Export Control Office (DECO), which is part of DoD, managing the permit regime as well as being handed a very wide net of powers concerning search and seizure of sensitive materials and intellectual property. This, when DoD runs its own R&D firm and Defence Science and Technology Group (DST Group) [formerly Defence Science and Technology Organisation (DTSO)] has already been accused of stealing intellectual property. The issues don’t stop here, the Commonwealth Scientific and Industrial Research Organisation (CSIRO) has also been dragged into controversy over the alleged illegal use of intellectual property.

Already there seems to be concern and distrust over the potential misuse and /or costs associated with the DST Group’s methods. One should keep in mind that there is legitimate basis for the concerns voiced against the Australian Government and DoD. Criminal allegations aside, questionable heavy handed tactics related to defence and security are not exactly unheard of in Australia and predate the DTCA. Such examples would include the prosecution of Philip Dorling related to his 2008 piece in the Canberra Times, and Allan Kessing for blowing the whistle on Australia’s airport security issues.

Allegations of Intimidation by CDS

DefRep sources have also leveled some rather concerning allegations against Chief Defence Scientist (CDS) Dr Alex Zelinsky. Dr. Zelinsky is alleged to have engaged in a conversation (October 2012) with a group of individuals in which he spoke in derogatory terms of an individual or individuals present for having publicly voiced concerns over the DTCA. DefRep reached out to the Office of the CDS to ask Dr. Zelinsky for comment, Dr. Zelinsky has, since first publishing this article, responded saying our “DefRep source is incorrect. At no time during the October 2012 conversation referred to did I make derogatory or intimidating remarks about [the individual(s) in question] … I did dispute the points … made. However, nothing that was said could be seen as threatening or disparaging
Issues at AAS
The conflicts of interest go beyond government agencies alone. Sources told DefRep of issues inside of the Australian Academy of Science (AAS) concerning its two parliamentary submissions (January and March 2015) on the proposed amendments to the DTCA. What can be said of the AAS is this, they are funded in part by the DoD. Indeed, the AAS told DefRep that “most of the Academy’s project funding comes from various government departments.” For an institution like the AAS, representing Australian scientists while taking funds from DoD (to be fair a necessary and unremarkable act in and of itself) places them in a difficult situation where one might argue they face conflicts of interest concerning the current debate between researchers and the Government regarding the DTCA.

Speaking to the AAS DefRep was able to learn little about the consultation process within AAS with their fellows before these submissions were made. The AAS said [t]he Academy’s submissions, including those regarding the Defence Trade Controls Act Amendment legislation (not on the introduction of the Act itself) were developed in consultation with Academy Fellows with relevant expertise – in this case, expertise in defence science – and with the oversight of the Fellows who sit on the Academy’s Executive Committee of Council.”

When the AAS was asked directly who or how many fellows were involved in the submissions AAS told DefRep that, “it is not the Academy’s practice to publish the names of individual Fellows who contribute to and advise on parliamentary submissions. On these two particular submissions [we] can assure you that Fellows who were senior defence scientists were consulted, along with a number of Fellows who more broadly represented the scientific community. All Fellows were aware that the Academy was responding to the public consultation process.”

Ultimately one can clearly judge that even in the most fair light there is questionable activity going on in Australia that leaves one to wonder at the overall integrity of the DTCA process. These questions, it should be said, could be easily addressed with a greater level of transparency which is likely the greatest problem surrounding the DTCA.

Consultation process Criticised by Government

The issues presented by inherent conflicts of interest have yet to be fully addressed. This would seem to be in part related to what has become a legislative and consultation process marred with foul ups. So much so that many of the Government’s own agents spoke out early on and in the strongest language over the process. It would be worth highlighting some of them here. One of the strongest which is worth mentioning concerning this process can be seen here, (well worth a look) where Sen. Scott Ludlam describes the process as “remarkable” , “an abuse of process”, and “certainly an abuse of the committee system that we are sent from all over the country to participate in”

Australian House of Representatives, Parliament of Australia, Canberra, Australia.

Sen. David Fawcett, Speaking in Parliament 18 March 2015 as the Bill passed the Senate, who served as chairman of the Defence sub-committee of the Joint Standing Committee on Foreign Affairs, voiced similar concerns about the early stages of the process. Like Sen. Scott Ludlam, Sen. Fawcett was concerned about the consultation processes (or more appropriately lack thereof) surrounding DTCA. Sen. Fawcett was in fact quite blunt in his indictment, describing early stages as such that,“ the consultations undertaken by the Department of Defence in this case were inadequate, and that would be understating the extent of the consultations”

However, continuing on Sen. Fawcett applauded the work that has since been done while cautioning that although consultation process had indeed, “led a range of amendments…other issues still exist and these need to be addressed … to make sure that we do not lapse back into passing inappropriate legislation and regulations that do not engage in a proactive way with stakeholders who will be affected by this legislation.”

 Sen. Fawcett argued that, “we have this 12-month implementation period—I think the offence provisions do need to be suspended for that period while people work through it” suggesting “a number of the smaller players in Australia’s defence industry manufacturing sector are not necessarily fully across the scope and the implications of what this whole act and the amendments may mean”

DefRep asked Sen. Fawcett, who has been vocal throughout the DTCA process, how he currently felt about the DTCA as it is set to soon become law, specifically, if there is anything else he would like to see happen as Australia moves forward with the DTCA that is not currently being done. Sen. Fawcett was kind enough to respond to DefRep saying,

“As I stated toward the end of that speech I think what is incumbent upon the Government and defence is to continue the consultation process (now much improved) such that as these amendments are implemented, any required changes that are subsequently identified can be effected quickly. This particularly applies to small business operating in the defence sector as they were not represented in a significant way during the more detailed consultation period with universities.” 

It had been said by our sources that in private the Chief Scientist of Australia Alan Finkel had also harboured doubts about DTCA. He was alleged to have had said of the DTCA that the situation was “probably hopeless.” DefRep asked Finkel about this claim, and his thoughts in the light of recent amendments and he was kind enough to respond to DefRep clarifying his position by saying the following,

“I do not oppose the new DTCA laws. I sought confirmation that the rules are no more restrictive than in other comparator countries such as the UK and the USA. It turns out to be difficult to determine this because in all the jurisdictions the ins and outs of the legislation tend to negate in one part what is said in another. I have not taken a public position. Instead, I have spoken to various experts in the university sector, the defence export controls group and others. It is clear that significant improvements have been made since the draft of the legislation and that substantial improvements have been achieved in the monitoring and compliance requirements.”

It would seem that as the DTCA is set to soon come into effect that officials have held serious concerns over the process. However, although they are willing to concede that certain issues still remain to be confronted, overall they seem satisfied with the current course of the DTCA.

Consultation and Submissions

From the other side on the situation, those outside government were found to still harbour serious  concerns regarding the consultation process. This includes concerns over a lack of clarity and knowledge among the research community of the request for submissions, the proceedings, and prohibitive deadlines. Deadlines and spotty consultation aside there are further issues. One glaring debate that still remains (at least as far as DefRep sources are concerned) seems to surround the International Traffic in Arms Regulations (ITAR) and how the DTCA stacks up. The question being if DTCA goes too far or misses the important caveats to protect scientists contained within ITAR.

How this relates to the submissions and consultation process is where it meets Jeffery Bleich’s, US Ambassador to Australia, submission to the Senate Foreign Affairs, Defence and Trade Legislation Committee (03Sub) 22 October 2012 arguing that there was no significant difference between the two pieces of legislation.

In his submission the US Ambassador argued that “there are no exemptions to the U.S. export control regulations that allow for the export from the U.S. of controlled technology used in fundamental research without a U.S. government authorization, as suggested by some Australian academics and to dispel the claim that Australian researchers would be disadvantaged compared to U.S. researchers by passage of the Defence Trade Controls Bill 2011.”

The Ambassador failed, DefRep sources argue, to recognize that American scientists have very strong first amendment rights to fall back on whereas Australians don’t. It is also possible that in the US the DTCA would be unconstitutional because of the 1st Amendment (free speech), 4th (unreasonable search), and 5th (presumption of innocence). ITAR puts the burden of proof on the prosecution who have to prove in court that the defendant gained access to controlled martial listed on the DSGL, and through negligence or intent, made it available to a third party. DTCA on the contrary in Part 1 not only reverses the burden of proof, but also creates a situation were anything a researcher discloses to public or overseas has to first be checked against controlled materials the researcher may not, and likely does not have access to.

DefRep sources argue that this would place individuals in an unenviable position of essentially flying blind unless every document related to Part 1 is reviewed by the DoD or a delegate to see if it does not reach any conclusion the same as those in the controlled domain. The point here is that DTCA could allow the state to potentially inflict massive costs almost arbitrarily on someone simply by alleging a breach. This is only compounded by unclear criteria such as “damage to international relations” that is entirely subjective, and difficult to challenge or prove.

Speaking to DefRep, Bill Rowlings of Civil Liberties Australia, who has taken a strong stand against the failures of the DTCA to properly safeguard Australians’ rights, had this to say to DefRep of the US Ambassador and his submission, “he’s hardly a dispassionate observer, and his Senate support for exchange restrictions … seems to indicate that ‘educational exchanges’ are only OK if they’re controlled by the US government, and its proxy, the Australian Department of Defence.” Rowlings went further explaining that the submission itself was, in his view, inappropriate because “it’s not the role of the US Ambassador to interfere in domestic Australia legislation.”

Kevin Korb, from the Faculty of Information Technology at Monash University, speaking to DefRep said this, “Bleich’s statement of equivalence between ITAR and DTCA was nonsense was clear to me upon reading his Senate submission. However, by now it should be clear to anyone. The DECO public advice about not carrying controlled dual-use information on laptops, etc. without a permit, regardless of intent, puts Australia into an authoritarian category of its own for any Western-style democracy.”

MP – United Nations

Perhaps the most startling issue to arise from the ITAR-DTCA comparison deserving further scrutiny concerns freedom of speech. In the case of the DTCA this has led into a conversation concerning the United Nation’s International Covenant on Civil and Political Rights (UN ICCPR). UN ICCPR is part of the International Bill of Human Rights and is supposed to serve in part to protect the freedom of speech of citizens of the countries who have committed as signatories (Australia) to the Covenant.

United Nations General Assembly hall in New York City.

In theory, under Australian law, legislation is supposed to comply with the UN ICCPR. The Australian Parliament’s Human Rights committee raised concerns the DTCA could violate UN ICCPR. In the Twenty-third Report of the 44th Parliament the Parliamentary Joint Committee on Human Rights, 18 June 2015 stated “The committee considers that the measures reversing the burden of proof in relation to the proposed new statutory exceptions (defences) limit the right to be presumed innocent. As set out above, the [Defence] minister’s response does not justify that limitation for the purposes of international human rights law, in particular that it is reasonable to reverse the burden of proof in relation to all elements of the defence.”

The question then is how does the Australian Government justify ignoring genuine concerns regarding UN ICCPR? Bill Rowlings of Civil Liberties Australia speaking to DefRep said this, “The government can legislate around the ICCPR if it wants to. ‘National defence’ trumps (!!) just about anything. The DTCA (almost certainly) does not violate any other Australian law, as it is within the Australian Parliament’s ability to legislate in that way. It is in clear violation of the ‘law’ of scientific exploration worldwide. It also violates common sense: how does Defence expect to get cooperation from scientists when it insists on a law that puts them on baby trainer wheels, with a BandAid over their mouths and plugs in their ears?

Closing Thoughts

DefRep sources are inclined to make reference to Soviet Russia in discussing the DTCA. One can certainly see why from their perspective one might. One thing is clear, for many the debate is far from over and serious concerns and even fear remain. This fear is not only for the future of Australian defence but also concerns personal rights and protection from misguided or even wrongful prosecution and attacks (intentional or otherwise) against freedom of speech, thought, and academic research in the name of some misguided quest for ‘national security.’ The fact that the legislation was so slapdash as to garner the early responses that it did is also deeply troubling not only in what it says about the DTCA’s foundations but the Australian legislative process as a whole.

The lack of Australian media attention also raises social concerns about the nature, openness, and critical approach (or lack thereof) towards government within Australia. Certainly one has to acknowledge when looking to the official University submissions versus what is being said by independent academics a concerning disconnect emerges.

Furthermore, the debate has been marred by a lack of effective communication on both sides which ultimately becomes the responsibility of the Australian Government. It seems clear from their public pronouncements that most of the Government’s concerns have been answered to their own satisfaction. At least this is what is being said, groupthink and the desire to move forward might be playing a role. If the Government feels these concerns have been properly addressed and yet such a tremendous amount of fear still prevails among such a rational and learned body of individuals who are totally capable of understanding the subtlety and nuance of legislative language and who are not prone to make decisions without thorough research, surely something has almost certainly gone awry.

It seems that either the Australian Government has got the DTCA legislation wrong or has simply failed to communicate their legislative intentions and corrections effectively. Given what this author has seen thus far, it seems clear enough that it is actually both of these things. Moving forward more consultation will be required to improve this bill. Thankfully at least some of the individuals involved, such as Sen. Fawcett, are aware of this need and eager to engage in a joint effort to improve what has to be called a rather poorly brought up piece of legislation.

 

Feature Photo: “DefRep making the DTCA known on the seats of the Australian parliament – Nick Watkins, 2016

Inset Photo: “Fall of Saigon” – Wikipedia, 2016

Inset Photo: “Australian House of Representatives, Parliament of Australia, Canberra, Australia” –Wikipedia, 2016

Inset Photo: “United Nations General Assembly hall in New York City.” –Wikipedia, 2016

United Nations General Assembly hall in New York City.

 

DefenceReport’s Analysis is a multi-format blog that is based on opinions, insights and dedicated research from DefRep editorial staff and writers. The analysis expressed here are the author’s own and are separate from DefRep reports, which are based on independent and objective reporting.

 

Chris is a PhD student at King’s College London, department of Defence Studies. He holds both a BA in Anthropology and an HBa in History from Lakehead University, as well as an MA in War Studies from the Royal Military College of Canada. He specializes in irregular conflicts, asymmetrical warfare, insurgency, revolution, guerrilla warfare, resistance movements, and rebel forces. His primary area of focus is the Caucasus, Eastern Europe, and the Balkans. Chris has served as an officer in the Royal Canadian Navy, as well as an advisor and analyst to the office of a Member of Canada’s federal Parliament.
cmurray@defencereport.com

About the Author

Chris Murray
Chris is a PhD student at King's College London, department of Defence Studies. He holds both a BA in Anthropology and an HBa in History from Lakehead University, as well as an MA in War Studies from the Royal Military College of Canada. He specializes in irregular conflicts, asymmetrical warfare, insurgency, revolution, guerrilla warfare, resistance movements, and rebel forces. His primary area of focus is the Caucasus, Eastern Europe, and the Balkans. Chris has served as an officer in the Royal Canadian Navy, as well as an advisor and analyst to the office of a Member of Canada’s federal Parliament. cmurray@defencereport.com