This article was written by Malcolm Brennan, Stephen Mason and Caitlin Rogers.
The Government continues to hold deep concerns about foreign interference in Australia. Recent issues about influence on academic research are now being addressed with new guidelines for the university sector.
The Australian Department of Home Affairs has published important new guidelines for Australian universities seeking to collaborate with international partners. The publication of Guidelines to Counter Foreign Interference in the University Sector (14 November 2019) highlights the increasing interest that the Australian Government is taking in the university sector and its exposure to inappropriate foreign influence.
The Guidelines draw attention to existing national and defence security controls applicable to the tertiary education sector, including the Defence Trade Controls Act 2012, and to the Foreign Influence Transparency Scheme Act 2018 (“FITS Act”) (see our alerts 29 January 2018 and 4 December 2018).
The FITS Act does not address foreign influence over universities, which, with the exception of the Australian National University, are State or Territory bodies.
The Guidelines were prepared by the University Foreign Interference Taskforce, led by the Department of Home Affairs and comprising members from (among others) the Attorney-General’s Department, the Department of Education, the Department of Defence, the Australian Security Intelligence Organisation and the Australian Cyber Security Centre. Whilst the Taskforce had a heavy Government presence focused on security, it also included representatives from Universities Australia and the Group of Eight. The Guidelines were produced in collaboration with the university sector.
The Guidelines are not law and they do not impose any formal obligations or penalties. However, as universities are generally subject to State or Territory public sector governance frameworks, they are usually required to identify and address relevant risks as part of their governance frameworks. The Guidelines make it clear that the risk of inappropriate foreign interference, together with the risks of cyber-attacks, is a real and significant risk that universities must address within the context of their governance arrangements.
What areas do the Guidelines focus on?
The Guidelines address:
- governance and risk frameworks - how they could be better focused on foreign interference issues;
- the need for due diligence in forming associations and partnerships with foreign entities;
- the need for appropriate protections for universities when entering into collaborations, partnerships, contracts or alliances with foreign entities (e.g. a clear ability to withdraw from an arrangement if the university’s academic freedom or research ethics are put at risk);
- the need to consider the potential end-uses of research (including research able to be used for dual-use technology where one use is inconsistent with promoting benefits for Australians); and
- how the universities communicate these concerns and processes to researchers, staff and relevant government agencies.
In each case, after a brief discussion of the issues, the Guidelines set out a series of questions to guide decision-making.
There is a strong emphasis on assessing arrangements against Australia’s national interest (which is not defined in the Guidelines), cyber security and information sharing with the Government’s security agencies.
There is a helpful section setting out “best practice considerations” that summarises the guidance provided through the Guidelines.
Like the FITS Act, the Guidelines are non-discriminatory and do not seek to target entities or individuals from any specific foreign country. They do however come at a time of increased media attention on the role of some collaborations with China-based organisations.
While it would be open to the Commonwealth to seek to extend FITS to universities and other organisations in the tertiary education sector, there appears to be no intention at the moment for the Commonwealth to extend the FITS Regime, or any variant of it, to that sector – and it would be a major undertaking to do so.
However, the Minister for Education, Mr Dan Tehan, has stated that, if universities did not take the guidelines seriously, and did not follow up on the warnings of a national security agency, he has some “blunt instruments” he can use to make sure they do – including acting through the Tertiary Education Quality and Standards Agency (which may affect accreditation of particular courses or the institution itself) or through conditions attached to Commonwealth funding.
What should you do?
A key step that universities can take is to review their contracting arrangements, contracting templates and relevant policies to see that they adequately address the risks identified in the Guidelines, including:
- robust arrangements that identify and manage risks of inappropriate foreign interference;
- strong due diligence processes in making decisions to enter into arrangements with foreign entities;
- appropriate protection for intellectual property and trade secrets brought to or generated by the arrangement;
- ensuring that confidentiality obligations do not prevent the university from reporting inappropriate foreign interference, or suspicions of inappropriate foreign interference (including cyber-attacks) to relevant Commonwealth agencies.
If you engage with Australian universities in research or if you sponsor research, be aware that the Guidelines will be applied to your contractual relations.