'Significant overreach': universities say Australia's foreign veto bill erodes autonomy
The Morrison government’s proposed foreign veto laws are so broadly worded that universities may be required to hand over thousands of pages of documents every year to be checked, an inquiry has been told.
Universities have also complained the legislation is so “extraordinarily wide” that it allows the foreign affairs minister to cancel agreements with international counterparts that may go against Australia’s foreign policy, even if that policy isn’t written down anywhere, publicly available or formally decided.
In one of the most strongly worded submissions to an ongoing Senate inquiry into the proposal, the University of Western Australia said it had grave concerns about the bill, which should not be passed in its current form.
UWA said institutional autonomy was “a central element of the free and vigorous higher education system which is essential to our economic and scientific progress and cultural enrichment”.
“It requires us to push back vigorously and without apology against proposals for the extension of executive power which may affect that autonomy without well-defined boundaries or limitations,” UWA said.
The new powers would allow the minister to cancel or prevent deals that public universities and state, territory and local governments reach with foreign governments and higher education counterparts that lack autonomy.
Related: Inside the Coalition's foreign veto laws over states and territories: what's included and why
Many universities have used their submissions to the Senate inquiry to push back strongly at what they say is a huge administrative burden on both them and the Department of Foreign Affairs and Trade, which will be charged with handling the new process.
The government has argued it needs the powers to ensure the commonwealth is “able to protect and manage Australia’s foreign relations” by ensuring arrangements do not adversely affect Australia’s foreign relations or clash with its foreign policy.
But UWA said defining foreign policy “to include policy that is in the minister’s mind” resulted in “a decisional black box devoid of transparency and accountability”.
The university also also took aim at the bill for scrutinising not just formal agreements but also “arrangements”, which it said was defined broadly enough “to capture things as mundane or anodyne as emails between executive assistants arranging a meeting between an Australian university officer and one overseas”.
UWA said it estimated that “if administrative correspondence in which ‘arrangements’ are made is required to be provided to the department, in any given year UWA alone would need to provide six to seven thousand documents”.
The University of New South Wales also told the inquiry the administrative burden of compliance would be unmanageable, “with thousands of agreements to review emanating from UNSW alone”.
UNSW said the legislation “effectively asks universities to comply with policy positions that may not be known or knowable”.
It said the fact the legislation was retrospective in effect – allowing cancellation of existing agreements – was “inherently objectionable, given the potentially far-reaching impacts of the legislation on existing arrangements”.
And it said the uncertainty over potential future agreements would “at best create delay and at worst lead to the loss of valuable research and educational opportunities which are in the national interest”.
“The legislation is drafted in the broadest possible terms, such that the practical impact on universities will be enormous and disproportionate to the objects of the legislation,” UNSW said in its submission.
“By way of example, on a conservative basis UNSW estimates that it currently has more than 4,000 MOUs [memorandums of understanding] and agreements (such as articulation agreements and international research agreements) in force with overseas partners.
“Allowing for the breadth of ‘arrangements’ as defined in the bill, we estimate that this figure could go well beyond 10,000.”
Charles Darwin University said while it was one of the smallest Australian universities, it had more than 200 arrangements and agreements in place with foreign universities and organisations relating to research and education.
Universities Australia, a peak body for the sector, used its submission to say the bill “represents significant overreach, imposing an onerous solution to an issue which could be dealt with more simply”.
The legislation defines Australia’s foreign policy as including “policy that the minister is satisfied is the commonwealth’s policy” and regardless of whether that policy “is written or publicly available; or has been formulated, decided upon, or approved by any particular member or body of the commonwealth”.
The Law Council of Australia said it was “difficult to envisage how a legal practitioner might advise their client in respect of policies that are not publicly available, or which may not yet have been formulated”.
The Law Council also called on the government to define “institutional autonomy” in the primary legislation, rather than leaving it to rules the minister could publish after the bill passed parliament. Universities face scrutiny for arrangements with overseas universities that lack institutional autonomy.
The Senate’s foreign affairs, defence and trade legislation committee is due to complete its inquiry by 5 November.
Labor has previously signalled that it was likely to support the new powers, although it has said it would scrutinise the legislation to ensure it was workable.
While there is unease within Labor ranks about the inclusion of universities, the opposition has also been considering a potential amendment to force the unwinding of the sale of the port of Darwin.
Universities have previously complained of being “blindsided” by the legislation, which the government never flagged through a taskforce it set up a year ago to deal with concerns about foreign interference in the Australian university sector.
Guardian Australia last week revealed Dfat had attempted to allay the sector’s fears at a recent briefing for universities, but that their concerns had only increased. An official was reported to have told the sector that “foreign policy considerations are not static”.
A Dfat spokesperson told Guardian Australia certain arrangements entered into by universities would be picked up by the legislation, but the bill was “not intended to impede the beneficial business of universities with their foreign counterparts”.
“It is expected that much of the routine business of universities will proceed as normal,” the spokesperson said last week.
