Flawed foreign relations bill tightens the reins on university independence

Terri MacDonald, Policy & Research Officer

Ignoring widespread warnings of unintended consequences from the university sector, the Federal Government has pushed on with its deeply flawed 'foreign relations' bill, the purpose of which being to prevent 'arrangements' with foreign governments that may 'adversely affect Australia’s foreign relations or are inconsistent with our foreign policy.'

Put simply, the legislation would give the Minister of Foreign Affairs sweeping powers to determine if a foreign or subsidiary arrangement could potentially be inconsistent with Australia's foreign policy or adversely affect Australia’s foreign relations. The effect would be that it only has to be determined that there may be a possibility of impact on policy (and not law); or alternatively, if the Minister feels there may be a possibility of an ‘adverse effect’ on foreign relations, for an arrangement to be summarily amended or vetoed.

While at first it appeared the Government’s intention was to target foreign agreements at State, Territory and local government level (for example, Victoria's Belt and Road agreement with China), it became quickly apparent that Australian universities were the only non-government entities to be deliberately captured by the Bill, although no explanation for this has been given.

NTEU’s submission to an inquiry by the Senate Standing Committee on Foreign Affairs, Defence and Trade Committee (chaired by Liberal Senator Eric Abetz) into the legislation outlined the Union’s opposition. We noted that universities are already subject to a considerable array of legislation and regulation around national security and the Bill is excessively broad in that the ‘arrangements’ it would cover. Indeed, the legislation covers contracts, memoranda of understanding and other arrangements, whether they are legally binding or not, commercial or not, and regardless of when they were entered into, as well as any variations to these arrangements.

Furthermore, it would cover arrangements with foreign universities that do not have the same level of ‘institutional autonomy’ supposedly applicable to Australian public universities – yet there is no definition of what actually constitutes ‘institutional autonomy’ in the Bill.

Given the Bill’s scope, it is likely to result in significant overreach, potentially impacting on the numerous Australian university arrangements with foreign entities, including, for example, agreements on joint degrees, staff or student exchange programs, research grant funding, collaborative research and conferences and collaborative opportunities, and joint commercial investments and activities.

The Government has claimed it’s not their intention to incorporate every single arrangement that Australian universities’ have with foreign entities, including other universities, (noting that, according to Universities Australia data, there were over 10,000 separate agreements held by Australian universities in 2018).

However, the wording of the legislation, the lack of definition around key provisions and the broad scope of the Bill has left this issue far from resolved. However, the flaws in this legislation go even further. The Bill explicitly denies any form of procedural justice, appeal and/or compensation for those negatively impacted by a Ministerial decision to not grant or to revoke approval of an arrangement. Furthermore, this decision to do so can be made in relation to 'foreign relations policy' that is 'not publicly known' or even the Government’s official position; there is no transparency and reasons do not need to be given. Finally, Department officials have reportedly told universities that the Minister would be able to effectively rip up an agreement that did have approval at any point in the future, as '…foreign policy is never static’.

Even more concerning however, is that this Bill would effectively require universities – which are non-government, independent and autonomous organisations – to be in step with the foreign policy of the Government of the day, potentially binding them to the Government’s political agenda and undermining institutional independence. While this alone should cause great concern, the Bill further exacerbates these issues in that it does not allow for transparency, procedural fairness or avenues for appeal should the Minister decide to amend or veto arrangements under the Bill’s provisions.

Finally, it’s concerning that universities are the only non-government entities that are being singled out by this Bill. There are many commercial entities that enter into arrangements with foreign governments and their subsidiaries where there is less oversight than what currently apply to universities.

In response to criticism of the Bill, the Senate Committee produced a report that not only endorses the legislation but recommends the Government consider broadening the scope to include health research associated with hospitals – although private industry and commercial enterprises still appear to be exempt. In a very minor concession, the Committee recommended that the Government consider inserting a definition of 'institutional autonomy' in the law and exempt 'minor administrative or purely logistical matters' from the legislative scope.

While NTEU is lobbying for the Bill to exclude universities, our VCs and Universities Australia appear, once again, to be willing to appease the Government, despite the detrimental impact of what is proposed. Indeed, there is a real danger this Bill will have a chilling effect on the sector, in which universities and academics would be reluctant to enter into arrangements should these (either now or at some future point) come under the shadow of this legislation. Even amended, however, the Bill’s fundamental flaws will remain. It is not without irony that this kind of legislation in another country would see those institutions fail most definitions of ‘institutional autonomy’, particularly in relation to political interference. Yet it would appear that this Government is determined to tighten even further the political reins on our universities.