Migration (Critical Technology⸺Kinds of Technology) Specification (LIN 24/010) 2024

This legislative instrument is made by the Minister for Home Affairs under subregulation 1.15Q(2) of the Migration Regulations 1994 (the Migration Regulations).

This instrument is made to specify the kinds of technology for the purposes of the definition of critical technology in regulation 1.03 of the Migration Regulations.

Overview – Promoting and protecting Australia’s critical technologies and research capabilities

The Australian Government is committed to maximising the opportunities offered by critical technologies, and supporting competitive, trusted, and diverse technology innovation and international markets, while minimising risks to our national interest.

Critical technologies are current and emerging technologies that have the capacity to significantly enhance or pose risk to our national interest. They are fundamental to Australia’s economic prosperity, social cohesion and national security, and are increasingly the focus of international geopolitical competition. Critical technologies can be digital (such as artificial intelligence) or non-digital (such as synthetic biology).

The safe and responsible development and application of critical technologies presents enormous opportunities for the Australian community and economy. Critical technologies will underpin exponential improvements in productivity, facilitating economic growth and high quality jobs, enabling all Australians to participate securely in the digital economy, improving our health, raising our living standards, and improving our defence and national security capabilities.

Critical technologies also confer a strategic edge, and at a time of intensifying geostrategic competition, this can be used to threaten our values, interests and way of life. This convergence of factors presents a spectrum of risks to Australia’s ability to realise the opportunities of secure, transparent critical technologies, including through: the malicious design, development and use of technology contrary to our values and institutions; impeding our ability to make sovereign decisions about the access, control and application of critical technologies; and interference in our domestic critical technologies ecosystem.

The Australian Government will work collaboratively with universities, research institutes and Australian industry to ensure we can balance the opportunities presented by critical technologies with appropriate risk mitigations. We are promoting innovation, science and research, and supporting competitive markets that rapidly and safely adopt new technologies and seize commercial opportunities.

It is vital to maintain the integrity of our research, science, ideas, information and capabilities to enable Australian industries to thrive and maximise Australia’s domestic research capability and intellectual property.

In this context, the Migration Amendment (Protecting Australia’s Critical Technology) Regulations 2022 and the Migration Amendment (Postgraduate Research in Critical Technology—Student Visa Conditions) Regulations 2022 (collectively, the PACT Regulations) amended the Migration Regulations to establish a legislative framework to manage the risk of unwanted transfer of critical technology in certain temporary and permanent visa programs. These amendments strengthened the Australian Government’s ability to identify and manage risks associated with the unwanted transfer of critical technology, including intellectual property and property derived from critical technology.

The legislative framework establishes a mechanism for targeted pre-visa screening, through new public interest criterion 4003B. This is complemented by a new visa condition 8208 and a new cancellation power in paragraph 2.43(1)(c) of Part 2 of the Migration Regulations, which provides for appropriately targeted safeguards after the visa grant. These post-grant safeguards enable additional screening to occur where a student visa holder intends to undertake critical technology related study in the postgraduate research sector, and provides for the cancellation of certain visas in circumstances where the visa holder presents an unreasonable risk of unwanted transfer of critical technology.

Activating the framework

Although the amendments that established the critical technology screening framework commenced on 1 July 2022, the framework will not be activated until a legislative instrument is made to specify the kinds of technology it will cover.

This Instrument—made by the Minister under subregulation 1.15Q(2) of the Migration Regulations—is in effect the keystone of the new framework. If no technology is specified for the purposes of the definition of critical technology in regulation 1.03 of the Migration Regulations, the legislative framework to determine whether there is an unreasonable risk of unwanted transfer of critical technology (subregulation 1.15Q(1)), and the associated screening requirements in public interest criterion 4003B, condition 8208 and paragraph 2.43(1)(c), are not activated.

Purpose of this Instrument

The purpose of this Instrument is to specify the kinds of technology for the purposes of the definition of critical technology in regulation 1.03 of the Migration Regulations.

Regulation 1.03 provides that critical technology means:

  • technology of a kind specified by the Minister in an instrument made under subregulation 1.15Q(2) of the Migration Regulations; or
  • property (whether tangible or intangible) that is part of, a result of, or used for the purposes of researching, testing, developing or manufacturing any technology specified by the Minister in an instrument made under subregulation 1.15Q(2) of the Migration Regulations.

Subregulation 1.15Q(2) of the Migration Regulations provides that the Minister may, by legislative instrument, specify the kinds of technology for the purposes of the definition of critical technology in regulation 1.03. The effect of specifying the kinds of technology in an instrument made under subregulation 1.15Q(2) is therefore that any such specified kind of technology is critical technology for the purposes of the Migration Regulations.

Significantly, the expression critical technology underpins the related expression unwanted transfer of critical technology, and other provisions inserted by the PACT Regulations that rely on the expression critical technology—including the public interest criterion 4003B in Schedule 4 to the Migration Regulations. The expression unwanted transfer of critical technology has the meaning given to it by subregulation 1.15Q(1) of the Migration Regulations. It means any direct or indirect transfer of critical technology by a person, or communication of information by a person about critical technology, that would:

  • harm or prejudice the security or defence of Australia, including the operations, capabilities or technologies of, or methods or sources used by, domestic intelligence agencies (within the meaning of Part 5.6 of the Criminal Code) or foreign intelligence agencies (within the meaning of the Criminal Code); or
  • harm or prejudice the health and safety of the Australian public or a section of the Australian public;
  • interfere with or prejudice the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth; or
  • harm or prejudice Australia’s international relations:
    • in relation to information that was communicated in confidence by, or on behalf of, the government of a foreign country, an authority of the government of a foreign country or an international organisation; or
    • by enabling critical technology to be used in a way that is contrary to Australia’s international obligations or commitments; or
    • by leading to a reaction by a foreign country that damages Australia’s interests or relations with the foreign country or with a particular region.

Where a kind of technology is specified by the Minister under subregulation 1.15Q(2), it is therefore covered by the definition of critical technology, and is integral to understanding the meaning of unwanted transfer of critical technology provided by subregulation 1.15Q(1).

Commencement

The Instrument commences on 01 April 2024, or—if it is not made and registered before this day—the day after the Instrument is registered on the Federal Register of Legislation (FRL).

Consultation

Subsection 17(1) of the Legislation Act 2003 (the Legislation Act) requires that the rule‑maker must be satisfied that there has been undertaken any consultation that is considered by the rule-maker to be appropriate and reasonably practicable to undertake.

The Department of Home Affairs consulted the Department of the Prime Minister and Cabinet, the Department of Industry, Science and Resources (including the Critical Technologies Hub), the Department of Education, the Commonwealth Scientific and Industrial Research Organisation (CSIRO), the Department of Foreign Affairs and Trade, the Department of Defence, and other relevant agencies. The Department of Home Affairs also consulted representatives of the higher education sector, including through the Universities Foreign Interference Taskforce (UFIT), and industry peak bodies through a series of roundtables and bilateral engagements. The outcomes of this consultation process informed the approach to finalising the list of technologies specified in LIN 24/010. Information in relation to the instrument and activation of the screening arrangements will be published on the Department’s website to inform and support visa holders, visa applicants and other stakeholders. The Department will also continue engaging closely with universities and other industry stakeholders and representatives. The Office of Impact Analysis (OIA) was also consulted. The Instrument gives effect to provisions in the Migration Regulations inserted by the PACT Regulations, and is considered to have no more than minor regulatory impact. The OIA consultation reference number is OBPR22-02396

Written by Ross Ahmadzai

20 Feb, 2024

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