25 February 2016, Kingston, CA

by Chris Murray

In January of 2015 Defence Report raised a flag of concern in an article concerning a new piece of Australian legislation, the Defence Trade Controls Act (DTCA). In Australia’s Defence Trade Control Act Clamps Down on Researchers, Defence Report’s Mark Collinson wrote on the problematic nature of this legislation and its potential to seriously damage the Australian defence industry for what were at best questionable objectives by dubious methods.

The DTCA is in essence an attempt to clamp down on research, theories, essentially ideas, that could have possible military applications. The idea itself is nothing new; Australia’s latest attempt is merely an incredibly potent example of how inept governments can be at dealing with these concerns.

US Army scientist conducting tests with chemical agents
US Army scientist conducting tests with chemical agents

Government controls over these areas of research and academia that hold military applications in fact have a long and checkered history. One needs only look to the Cold War for examples of failed attempts to safeguard knowledge in this regard. It is in fact the original CoCom (Coordinating Committee for Multilateral Export Controls) which has become the US ITAR (International Traffic in Arms Regulations) that serves as Australia’s catalyst for the DTCA. The basic idea is to keep states with which you are competing from obtaining technology and research and thus maintain a military / technological edge. To quote a report entitled The Unintended Consequences of the Defence Trade Controls Act 2012 by authors Air Commodore Edward Bushell RAAF (Rtd) and Mr Peter Goon, USNTPS (FTE) “this ‘blockade’ approach has typically failed over time, as the party or parties under blockade tend to develop indigenous alternatives as substitutes.”

Australia’s latest attempt is a particularly bad piece of legislation. Originally the Defence Trade Controls Act was passed in 2012 with the aim of it taking affect in 2015. In early 2015, the Act was revised (Defence Trade Controls Amendment Bill, or DTC Amendment Bill) adding additional powers, and providing a narrow exemption for academic publishing. The Act is now scheduled to go into effect on 2 April 2016. The amendments were introduced following a consultation process described in one Senate submission as a “sham”. Observers have commented on the questionable way in which the legislation was first passed, contrary to the wishes of the Senate committee one might add. The government of the day, in a display of contempt and parliamentary shenanigans of the highest order, simply ignored the Senate committee and put it to a vote when most of those senators involved with the bill were absent. A particularly poorly written, convoluted, and vague document, even after revision, the DTCA is still a bureaucratic nightmare waiting to happen even after a two-year consultation with the Australian public, academia, and industries.

This is no surprise when one considers the nature of the two year review which has been described as nothing more than a sham. The amendments that were passed have in fact done as much harm as good. The notable 2015 amendments were the narrowing of permission for academics to publish in “dual use” but not “military”, which means little due to the “catch all (d) and (e)” clauses in many military tech categories, an exemption for all civil servants, and extending coverage to Australians living overseas as permanent residents, this intended to block immigration by Australian citizens overseas.

The Australian National Tertiary Education Union (NTEU) has also raised concerns about the government’s consultation process and “contend that the extent of engagement with affected university staff remains inadequate” and that “there remain a number of critical flaws in the legislation that are effectively new measures that present regulatory and economic risks to the higher education sector.” The NTEU argue “the nature and purpose of this legislation is fundamentally to impose constraints upon academic freedom through the regulation of intangible supplies and publication” Indeed, it seems this is all about the Australian government posturing so it looks tough and like it is doing something effective.

The act itself is really a bloated and poorly written piece of catchall legislation of the worst sort that will impose massive compliance burdens on huge segments of the Australian academic and industrial sectors. To quote John Stapleton’s article Malcolm Turnbull’s doublespeak on encryption, 25 November 2015, “the legislation covers almost everything to do with international interaction, publications, conferences, teaching, research, correspondence and informal scientific exchanges, editing and peer review, commercial consulting, foreign nationals, patented information, sanctions, travelling and working overseas and records management.

Renowned international lawyer Geoffrey Robertson told The New Daily the Defence Trade Controls Act is “so sloppily drafted that it is a real threat to academic research which has no sensible connection to military technology.” Dr Daniel Mathews, lecturer in mathematics at Monash University described the legislation as so uncertain that “It scares a lot of researchers to go overseas where there is not such uncertainty and potential risk of running foul of the law” and goes on to point out a major issue with the vagueness of the new legislation stating “a lot of teaching at university is streamed online through overseas campuses. If a researcher is talking about encryption for everyday purposes, do they really need an export license to teach it in that class?”

An unnamed source from within the Australian research community speaking exclusively with Defence Report on the condition on anonymity explained the DTCA is already hurting the Australian research sector by forcing researchers to return to pre-DTCA research topics to maintain their status and jobs. One source explained “I had to reboot research from a decade ago, that is not covered by DTCA, so I can remain employed as an academic.” Beyond this, a source described the academic elements of the environment as such that “basically Australia has become quite toxic for most of the research areas I have worked for much of the last 20 years. DTCA starts in April, so thereafter I have to behave like Soviet scientists did to stay out of jail.”

Indeed, this author has often heard ‘Stalinist’ used to describe the new world the Australian defence and academic communities face.

One can’t help but wonder how completely tone deaf the Australian government must be to ignore these complaints. It is really starting to look like at this point as if either the Australian government is totally inept or is using DTCA as a vehicle, intentionally manufactured by the Australian government, by which it can intimidate and silence researchers whose work they find inconvenient.

Experts from not only inside Australia but around the world have condemned the laws imploring the government to rethink the act, going so far as initiating several petitions. The International Association for Cryptologic Research petition alone has garnered the support of over 200 world experts. Civil Liberties Australia has a petition of their own supported by some of Australia’s top academics.

Playing the stupid card here this author would point out that Australia already has espionage laws, for example, part VII: Official Secrets and Unlawful Soundings in the Criminal Act of 1914, not to mention a host of anti-terror laws which could serve the same purpose as that which is behind the spirit of the DTCA with, or perhaps even without, amendment leaving one to wonder why there was a need to bring forward this legislation in the first place.

One major issue with the Australian government’s regulation is that unlike the US ITAR system, which provides wide exclusions for “fundamental” research, Australia’s DTCA does not possess such exemptions. This threatens to cast a net so wide as to cripple the Australian economy. Both industry and academia are set to suffer from the Australian government’s lack of foresight or even simple referencing of similar legislation passed by their partner countries.

The legislation has been in fact made worse in some areas by the 2015 amendments by the introduction of a new Ministerial ‘prohibitions power.’ It seems in principal a wise move but the lack of constraints surrounding the use of said power and vagueness of the legislative wording leaves the Minister’s prohibitions powers disproportionate and opens the potential for them to become politicized.

The issues go beyond possibly hampering development and innovation or politicization; it could constitute an actual threat to, as opposed to safeguard for, Australia’s defence. As The Unintended Consequences of the Defence Trade Controls Act 2012 report asserts “the unintended, if not unforeseen, adverse impacts of the Act are so wide and pervasive that it will be difficult, if not impossible, for a ‘person’ thought by Defence to be subject to the Act to determine if, indeed, they are subject to the Act, and, if so, whether or not their current activities might be in breach of the Act, irrespective of whatever Defence’s interpretation of the Act might be on any particular day and in any particular circumstance.” And “the current preference throughout Western policy circles to opt for highly restrictive regulatory regimes, rather than invest in science and technology research, while supporting science and technology education, cedes the advantage in technological competition decisively to those nations that are not constrained by such regimes, particularly China and Russia.”

Puccinia striiformis var. striiformis, also known as Wheat Rust
Puccinia striiformis var. striiformis, also known as Wheat Rust

The first quote is worth highlighting; the issue is also a logistical one. The DTCA is governed by The Defence and Strategic Goods List or DSGL, that is based on the UK controls list for industry, itself based on the US ITAR and CCL lists, and developed to regulate industry exports, not research. The DSGL is what the title suggests, a list of everything that the DTCA covers. The DSGL is 332 pages long. On it’s surface it seems reasonable until you really start to think about it. The list of areas it covers are; Nuclear materials, facilities and equipment, Materials, chemicals, microorganisms and toxins, Materials, Electronics, Telecommunications and “information security, Sensors and lasers, Navigation and avionics, Marine, Aerospace and propulsion, and finally Sensitive list of dual‑use goods and technologies. So one can see just how wide the net has the potential to reach and that countless non defence related industries are going to get caught up with this. Its not just going to hurt the development of Australia’s defence industry but most of its industries will be affected at some level. The Materials, chemicals, microorganisms and toxins section includes all sorts of industrial products despite its caveats about various industries. Even if they are all protected by the vague language the bureaucratic process that will be required to sort out what is and is not kosher is going to be massive. Materials deals with so many metals and alloys there is no way it’s not going to run into Australian industry like the mining sector; will every time a mining company has a teleconference that mentions any technology will they need approval? Medical research into pathogens and even agricultural research undoubtedly stand to be affected. One example this author found is this, if you are an agricultural researcher and wish to talk about Puccinia striiformis (wheat rust) with colleagues overseas you’ll need approval. This seems wholly unnecessary.

Given that the DTCA regulates anything from email, fax, telephone, video conferencing, providing access to electronic files, or presentations that contain DSGL technology the Australian government faces a massive Bureaucratic nightmare bearing down on them. The Defence Export Control Office (DECO) [Department of Defence], responsible to the Minister for Defence, will need to be massively expanded and it seems it will be so bogged down in bureaucratic approval processes as to make the entire process virtually unworkable. That’s not to mention the staff at DECO authorizing and denying applications will likely not understand (at least not fully) the subject material the applicant wants to talk about. Assuming they did there is the issue of clearing the individual in the foreign country the Australian researcher wishes to speak with. The Australian government has yet to realize they don’t have the treaties in place they need with many countries and even if they get them it will take a one day conversation and hold it up for potentially months or even years.

With the recent talks with Tokyo, Australia should be asking how this legislation will affect the potential submarine program that Tokyo is currently urging the Australians to award to Japan. The fleet would amount to a major transfer of defence technology and capabilities with the aim of greater operational cooperation concerning maritime security in the region with an eye to China. This seems necessary and wise but how will that process develop inside the new world of DTCA? Even if this were not to be awarded to Japan Australia has just announced it is boosting defence spending by $21 billion which included the addition of a dozen new subs that have to be built somewhere, if not Japan, French and German shipbuilders are being eyed which presents the same issues.

With Australia’s new Prime Minister, Malcolm Turnbull’s “innovation agenda” which aims to effect a major structural change in Australia’s economy by fostering high tech industries, and attracting foreign investment into the high tech sector one must say Australia’s government seems to be at cross-purposes with itself. DTCA will kill these plans and it seems unclear if anyone has actually explained this to the new Prime Minister.

So how did this all happen, government ineptitude at its finest seems the most clear culprit. One of Defence Report’s unnamed sources described it as such, “the Australian DoD played the weaknesses of the parliamentary system masterfully, and Universities Australia and other so called ‘stakeholder entities’ put up little resistance when the Bill was proposed, and collapsed once it was passed. Nobody believed the parliament would agree to this. Politicians I have spoken to all told me the muted response by the senior management of the Universities convinced them that all was well and there was no reason not to pass the legislation. Local media neither cared nor were interested. Basically nobody believed it was possible, many were too lazy to read into it, or didn’t think it would impact them, and many simply did not give a damn.”

DefRep prediction here, the author is going to go out on a limb and suggest that within 10 years the DTCA will have been totally and completely overhauled or, more likely still, scrapped and started anew. At the very least the control regime will need to be considerably revised as the Australian government finds itself driving industries into wall after wall. This will likely start occurring within 1 to 2 years of it taking affect as industry after industry begin to petition the Australian government once it is realized what is really happening in practice; that’s if the DECO can even keep up with how many unintentional infractions are likely to occur. One is left to wonder if enforcement will even be feasible. In the meantime the Australian economy is going to take a much larger hit than most anticipate.

Only thing left to say, have fun Australia you are about to enter a nightmare of your own design and your own government’s ineptness is to blame.

* Correction: Since the publication of this article the author has been contacted and informed that an oral exclusion incorporated into 2015 amendment laws specifically applies to teleconferencing which might serve to negate the example used in this article but not the underlying point.

Feature Photo: “HMAS Albany” – Wikimedia Commons, 2016

Inset Photo: “US Army Scientist testing chemical agents”– US Army RDECOM, Flickr, 2016

Inset Photo: “Wheat rust” – Wikimedia Commons, 2016

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.

By Chris Murray

Chris is the Assistant Editor at DefenceReport and Senior Analyst. He holds a PhD is Defence Studies from King’s College London, an MA in War Studies from the Royal Military College of Canada, as well as both an Ba in Anthropology and an HBa in History from Lakehead University. He specialises in irregular conflicts, guerrilla insurgencies, and asymmetrical warfare. His areas of focus include the Caucasus, and Eastern Europe, but are primarily aimed at the Balkans. Chris is an Associate Member of the of The Corbett Centre for Maritime Policy Studies at King's College London, a Member of the Second World War Research Group at King’s College London, as well as an Associate of King’s College London. Chris has formally served as a defence and foreign policy advisor in the Canadian House of Commons to the office of a Member of Parliament. [email protected]