Australasian Science: Australia's authority on science since 1938

Defence Takes Control over Australian Research

By Brendan Jones

A new law comes into force this month that puts scientists at risk of imprisonment and businesses at risk of losing their intellectual property.

On 2 April the Defence Trade Controls Act (DTCA) comes into force. This new law controls research into technologies that, in theory at least, could have military applications.

The Department of Defence’s 353-page list of such “dual-use” technologies (www.tinyurl.com/jcsm9ro) lays claim to just about every field of research, including infectious diseases, biotechnology, high-performance computers, robotics and artificial intelligence, encryption, electronics, manufacturing, and software for these applications.

While there is an exemption for oral communications and formal publication of dual-use research, the Act prohibits communication by “email, fax, telephone, video conferencing, providing access to electronic files, or presentations that contain [Defence and Strategic Goods] technology. The provisions apply equally to the industry, university and research sectors” (www.tinyurl.com/z9yhngp).

As a result, Australian researchers who send an email about their work to an international colleague without a permit from Defence risk 10 years imprisonment, a $425,000 fine and forfeiture of their research. In violation of international human rights law, those charged are presumed guilty and must prove their innocence.

The DTCA controls many research topics with no sensible connection to military technology. For example, it restricts research into toxins produced by a pest mould that grows on rice and is the third leading cause of liver cancer worldwide.

It also restricts research into “golden staph”, which every year kills more than 10,000 patients in US hospitals alone. And it restricts research into Ebola and Dengue fever, which kill more than 60,000 people per year.

Medical researchers agree with restricting weaponisation research, but not research into the diseases themselves.

When outbreaks occur, and patients only have days or hours to live, medical researchers must move quickly. However, Australian medical researchers are now forbidden from sharing data or discussing unpublished treatments with overseas doctors until Defence grants a permit, which can take weeks.

Nor can Australian doctors share data about their own patients to overseas researchers or attend outbreak seminars until Defence grants them a permit. Medical researchers are warning that no one overseas will want to deal with Australians, and any Australian researcher who carelessly cc’s a foreign colleague on an e-mail faces 10 years jail. It’s a good reason to choose another research area, or relocate overseas.

It’s easy to violate the DTCA. Take the radar equation from nearly any physics textbook. Add a term, perhaps for weather or ground bounce, in a way that probably hasn’t been done before. Now put that in a MATLAB file and e-mail someone overseas. You’ve just broken the law, and can be locked up for 10 years.

Yet this is legal in the US, UK, and even Russia and China. In fact, although the DTCA is supposedly for compliance with the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies, the US and UK versions protect fundamental research, public education, seminars and overseas visits. Australia’s does not.

While common sense could prevail in the application of the DTCA, it’s worth noting that Defence has a conflict of interest. It has business partners and a research arm, the Defence Science and Technology Group (formerly DSTO), and is under pressure to earn commercial income. For example, in 2013 Defence signed a pact with CSIRO to form a “world-leading collaborative research powerhouse for dual-use technologies,” and this is now also controlled by the DTCA.

Defence inspectors accompanied by defence scientists can now demand entry to research premises for an “audit”, and make copies of intellectual property. Defence lawyers say the Department has no obligation to respect commercial confidentiality.

This is unworkable for business, which needs to keep trade secrets secret. Defence has already been accused of academic plagiarism by a large defence company, and in 2013 Crikey reported that Defence had stolen IP from companies (www.tinyurl.com/prl8tt9). This includes my own.

In this environment, large companies will transfer their proprietary research offshore, and small ones will pack up and leave. My technology company already has.

Hypocritically, federal government employees are exempt from the DTCA. They can do what private sector or university researchers would go to jail for.

The DTCA will have a devastating effect on Australian science and technology. It will kill the nation’s innovation culture, prevent international collaboration, make IP protection impossible, and drive away investment and entrepreneurs.

It will kill Malcolm Turnbull’s “Innovation Agenda” before it even leaves the gate.

Brendan Jones has dissolved his Australian technology business and now works in a startup company overseas.