Australasian Science: Australia's authority on science since 1938

New Defence Act Handcuffs Science

handcuffs

Under the Act, publication, discussion or communication of research without a Defence permit will be punishable by up to 10 years jail, a $425,000 fine and forfeiture of research to the government.

By Brendan Jones

Australian scientists risk huge fines and even imprisonment under new laws that will give Defence bureaucrats extraordinary powers over their research.

From 17 May 2015, when the Defence Trade Controls Act (DTCA) comes into effect, the federal Department of Defence will gain control over a very large share of high-tech and science research in Australia. Under the Act, publication, discussion or communication of research without a Defence permit will be punishable by up to 10 years jail, a $425,000 fine and forfeiture of research to the government. This includes scientists, academics, librarians, engineers, high-tech workers and companies that have never had a prior relationship with the Department of Defence.

The Act was passed to allow a defence cooperation treaty with the US, but the Act doesn’t just apply to military technology – it includes so-called “dual use” civilian technology, including physics, computers, electronics, communications, manufacturing, medicine and biotechnology.

Nobel Laureate Peter Doherty warned in an e-mail: “A cell phone can have a ‘dual use’ for conversation or to trigger a bomb. How far might an authoritarian regime take this? The virology community is very concerned about the interpretation of ‘dual use’ when it comes to investigative work with dangerous pathogens. Interpreted too broadly, this type of legislation could have a stultifying effect on research.”

Likewise Dr Michael Biercuk of The University of Sydney warned in The Conversation that it is “obvious that cutting-edge scientific research relies heavily on exactly the kinds of technology that the list seeks to control”.

In October 2012 the Coalition called the law a disgrace, but joined with the Labor government to pass it anyway.

Independent MP Rob Oakeshott warned Parliament: “The McCarthyist intent may be honourable, but the delivery through this legislation is dangerous. It is jeopardising our commitment to a research sector in Australia that I would have thought is important to all of us in the many fields that we deal with in this chamber, from food and fibre production all the way through to the medical and health sciences... Why on earth are we therefore including a criminal offence for a researcher in that space?”

Universities also opposed the law. The University of Sydney’s Deputy Vice Chancellor of Research, Prof Jill Trewhella, warned in The Sydney Morning Herald: “This legislation could mean a conference speech, publication of a scientific paper or sending an email to colleagues could require a Defence permit or become a serious crime”. US researchers have exemptions for basic research, but when Australian universities asked for the same they were refused.

While academics are concerned for their own research, some believe that the Act will have a disastrous impact on the next generation of researchers. Dr Kevin Korb of Monash University’s School of Information Technology said in an interview for this article: “As it stands, the DTCA criminalises publishing even basic research when that might have intended applications, but it also criminalises PhDs and their publication, so overseas students in high-tech will go elsewhere”.

The DTCA gives the public service the power to force entry into universities and high-tech businesses to examine and copy academics’ research, which the Commonwealth claims it has no duty of care to protect. This raises serious concerns about a conflict of interest because the government has its own business enterprises and partnerships, bids for its own contracts, and has exploited insider information for commercial advantage in the past.

In 2013, Chris Seage reported in Crikey that the Defence Science and Technology Organisation (DSTO) was stealing intellectual property from private sector companies – one of those companies was my own – to benefit the Department of Defence’s business partners financially. At one point a large defence company refused DSTO employees access to its premises, but under the DTCA it will soon be forced to allow them both entry and full access to their IP.

The DTCA suspends the right to silence. If a public servant asks about the contents of a certain filing cabinet, you cannot refuse to answer. Answer incorrectly – perhaps something was moved or forgotten – and you have violated Section 137.1 of the Criminal Code, which is punishable by 12 months imprisonment.

If prosecuted, the onus of proof is reversed. Instead of the government having to prove your guilt, you must prove your innocence.

Today’s common law rights exist because of past abuses by public servants. The “castle doctrine” was created because public servants would break into homes to look around. Today the claim “I’ve got nothing to hide” invites government surveillance.

You might think that if you do nothing wrong you will have nothing to fear, but you could break the law accidentally by publishing something on the internet or discussing your work with someone overseas, even as a collaboration or during peer review.

You could also be convicted entirely on circumstantial evidence. Suppose there is a breakthrough in your area of research by an overseas colleague or a former foreign student of yours. The authorities could allege that you supplied the information to them.

The authorities can use metadata surveillance to prove you contacted them by phone or email, but even that is unnecessary; all they need for a successful conviction is to show that you had the information and that later your colleagues had it too.

The National Tertiary Education Union warned its members in a DTCA circular: “Ultimate responsibility will be borne by you as individual researchers, or as staff who may handle relevant scientific documents or publications. You bear the burden of facing financial penalties or going to jail.”

A sobering example of how such a prosecution could play out is the case of Allan Kessing, a public servant accused of leaking a report. Police had raided Kessing’s family home twice, finding no direct evidence yet convicting him on circumstantial evidence according to the principle that “only he had the report, so it must have been him”. However, police knew that others also had the report yet failed to inform the jury. By the time Kessing found this out he had no money left for an appeal. The process took 4 years and cost Kessing $70,000 in lawyers’ fees. At a press conference Kessing said: “The toll this ordeal has put on my family is immense”. The Australian’s legal journalist Chris Merritt wrote that Kessing’s treatment by the authorities was “worthy of Kafka”.

Defence has a strong incentive to pursue prosecutions because scientists convicted under the DTCA forfeit their research and its intellectual property to the government. In the past the Department has been criticised for failing to commercialise its own research. In 2004, despite a $260 million research budget, Defence only generated income of $1.5 million. An official report criticised Defence’s poorly performing spin-off companies. However, technologies forfeited through the DTCA can be resold to improve Defence’s bottom line.

The DTCA will have a devastating effect on research and industry. As Biercuk warned: “Its potential implications are shocking, and at odds with existing Australian legislation protecting academic freedom – potentially disrupting and even criminalising common activities undertaken in the course of university research.”

Peter Goon, co-founder and former director of the Defence Teaming Centre, which represents 230 companies, said in an email: “Many of our best and brightest people and innovative SMEs have or are moving their interests out of the Australian defence sector, and mostly offshore, because of the DTCA”.

A high-tech entrepreneur who declined to be named added: “The government won’t budge on the DTCA, but no entrepreneur is going to agree to cut growth and wade through a paperwork nightmare. I’m outsourcing our R&D overseas. It’s cheaper anyway.”

Nobel Laureate Prof Brian Schmidt of the Australian National University said in an e-mail: “The DTCA is going to be an interesting experience, and if there are going to be problems with it, expect all hell to break loose when it starts to bite”.

Trewhella told the ABC’s Lateline that the DTCA will drive scientists away: “They’re definitely telling me that they’re going to have to assess the impact of this regulatory regime on their ability to be competitive and to do their work in Australia. They’re definitely worried that it is going to have a big impact and they’re concerned that they may have to go elsewhere to do their research.”

I myself warned the Chief Scientist for Australia, Prof Ian Chubb, that “I would not create a technology company in Australia under these circumstances”. Chubb, Industry Minister Ian Macfarlane and Defence Minister Senator David Johnston were approached for this article but declined to comment.

In the 2 years since the legislation was passed, the government has done nothing to reassure academia and business. And so, as manufacturing fails and unemployment climbs, I too will leave Australia permanently at the end of this year to found a new high-tech company overseas.

Brendan Jones (bjones.public@gmail.com) is a software engineer and entrepreneur.