A ‘catch-all prohibition’ to prevent emerging dual-use technology from making its way into the hands of foreign militaries is being contemplated as part of the ongoing review of Australia’s defence export controls.
The proposal, aimed at helping regulation keep pace with changes in the technology landscape, was floated by review co-leads during a roundtable last month and has gained the in-principle backing of Universities Australia and the Australian Academy of Science.
But both peak bodies have warned that the idea, if not jointly-designed with the sector, could lead to additional burden on researchers and universities working on defence research.
In submissions to the review of the Defence Trade Controls (DCT) Act, the catch-all prohibition has been described as a supplement to “current triggers aimed at capturing non-Defence and Strategic Goods List (DSGL) technology”.
The DSGL specifies the technology that requires a permit under the Defence Trade Controls (DCT) Act – which regulates the supply of military and ‘dual-use’ technologies overseas – before being exported, brokered or published.
The catch-all prohibition would be supported by a “granular list” of between 30 and 40 technologies in regulations associated with the DCT Act, as well as a network of advisors that would be accredited by Defence and embedded within universities or peak bodies.
Similar catch-all legislation currently exists to prevent the export of weapons of mass destruction, as well as other goods or technologies that are not on the DSGL, but could be detrimental to Australia’s defence and national security.
Universities Australia, which represents 39 member universities, said the proposal, if designed and implemented appropriately, could work to address gaps in export controls, acting as a sort of “litmus test” that prompts greater thought of dual-use potential.
“UA considers that this is potentially a way of addressing a clear and increasing gap in our export controls, especially relating to new and emerging technologies where the DSGL cannot always keep pace, while adding to clarity and certainty for university researchers,” its submission states.
But the peak body is concerned that such an approach could “truly ‘catch all’ technologies and developments (including ‘non-goods’ such as Intellectual Property)”, resulting in “significant additional regulatory burden” on researchers, and greater barriers to participation.
It said this could be addressed through co-design with universities and research organisations, a recommendation that was also put forward by the Australia Academy of Science (AAS) in its submission.
The group also recommended that a principles-based approach instead be adopted, arguing that principles have the “benefit of being forward looking – provoking consideration of hypothetical future circumstances”.
While the AAS described the catch-all prohibition as a “reasonable response to the impossible task of maintaining an up-to-date DSGL”, it was sceptical of the network of “trusted agents” that would be accredited by Defence.
“It is unclear the role these ‘trusted agents’ would play that senior university leaders (such as deputy Vice Chancellor – Research or delegates) do not already provide in understanding obligations and overseeing implementation of the legislation,” it said.
“There is also a concern that embedding ‘trusted agents’ in universities would not be conducive to developing a positive culture around awareness and shared responsibility to manage risks.”
UA also used its submission to highlight that no changes to the DCT Act ever stemmed from the Thom Review in 2018, despite it making a range of legislative recommendations aimed at “closing gaps”.
The 2018 review, which scuttled a Defence attempt to gain sweeping controls over how all technology developed in Australia is sold or exported, had recommend that the department work with universities to develop a practical proposal that addresses legislative gaps.
The AAS noted that outstanding recommendations remain relevant, describing the “ambiguity over the definition of basic research and controls for emerging and sensitive military dual use technologies” as one of the “persistent concerns that should be addressed”.
Both peak bodies also said that any reforms to the DCT Act, which avoid introducing additional regulatory complexity, allowing Australia to remain open to research collaborations and meet the needs of the AUKUS security pact.
“For Australia –which has a relatively small science system in international terms – maintaining relatively open research collaborations is critical to maintaining our research sector and benefiting from innovation,” the AAS said.
“Rather than simply ‘raising the fence’, Australia may need to consider a nuanced, tiered risk framework that creates a ‘middle space’ between defence and open university research.”
Led by the former Defence deputy secretary Peter Tesch and one-time chair of the competition watchdog, Professor Graeme Samuel, the DCT Act review is examining existing policies and regulations surrounding the protection of sensitive and critical technology.
When it was announced in August, Defence minister Richard Marles said it would ensure Australia “balance[s] the need for greater technology sharing between our international partners, the protection of our sensitive technologies, and our international obligations”.
The federal government is preparing to introduced legislation that would allow for the exchange of military technology with the US under AUKUS. Lawmakers in the US approved draft legislation incorporating similar reforms earlier this year, but they are yet to progress.
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