Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AUSTRALIA'S FOREIGN RELATIONS (STATE AND TERRITORY
ARRANGEMENTS) BILL 2020
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments and New Clauses to be Moved on Behalf of the Government
(Circulated by authority of the
Minister for Foreign Affairs, Senator the Honourable Marise Payne)
AUSTRALIA'S FOREIGN RELATIONS (STATE AND TERRITORY
ARRANGEMENTS) BILL 2020
OUTLINE
The Australia's Foreign Relations (State and Territory Arrangements) Bill 2020 (the Bill)
allows the Minister to assess whether arrangements between State and Territory entities and
foreign entities are consistent with Australia's foreign policy and do not adversely affect
Australia's foreign relations.
Section 8 of the Bill defines, as a foreign entity, a university that is located in a foreign
country and does not have institutional autonomy.
The amendments to the Bill will specify the circumstances in which a foreign university is
taken to lack institutional autonomy.
The amendments will also require a review of the operation of the legislation to be
commenced after three years. This will ensure the scheme established by the Bill remains
effective and responsive to Australia's foreign policy interests.
FINANCIAL IMPACT STATEMENT
The financial impact of these amendments is nil.
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AMENDMENTS TO THE AUSTRALIA'S FOREIGN RELATIONS (STATE AND
TERRITORY ARRANGEMENTS) BILL 2020
NOTES ON AMENDMENTS
Amendment 1 Clause 4, page 6 (after line 12)
1. This amendment inserts a signpost definition for the term governing documents. This is
consequential to amendment 2, which inserts new subsection 8(4).
Amendment 2 Clause 8, page 10
2. This amendment removes subsection 8(2) of the Bill and inserts new subsections 8(2),
(3) and (4).
3. Current subsection 8(2) of the Bill provides that a university does not have institutional
autonomy if, and only if, the rules prescribe circumstances in which a university is taken
not to have institutional autonomy, and those circumstances exist in relation to the
university. The rule-making power in this subsection is no longer required, as the
circumstances in which a university does not have institutional autonomy are set out in
new subsections 8(2) and (3).
4. Consistent with the purpose of the Bill to protect and manage Australia's foreign
relations, new subsections 8(2) and (3) are intended to capture those arrangements
between State/Territory entities and foreign universities that are more likely to impact
Australia's foreign relations or foreign policy, by virtue of the university being
substantially controlled by a foreign government.
5. New subsection 8(2) provides that a university located in a foreign country is taken not
to have institutional autonomy if a foreign government is in a position to exercise
substantial control over the university. This subsection will apply regardless of whether
or not the university is located in the country of the foreign government. For example, a
university located in one country, but substantially controlled by the government of a
different country would fall within scope of new subsection 8(2).
6. This subsection is intended to capture foreign universities where a foreign government
(including a foreign political party that forms the foreign government) is in a position to
control the university in such a manner that the university does not operate independently
of that government, particularly in relation to its internal governance and staffing,
academic curriculum, research, teachings, and publications.
7. New subsection 8(3) sets out the indicators of when a foreign government is in a position
to exercise substantial control over a university.
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8. New paragraph 8(3)(a) provides that substantial control will be indicated where a
majority of the members of the university's governing body are required, by a law or the
university's governing documents, to be members or part of the political party that forms
the foreign government.
9. "Members or part of the political party" is intended to capture any requirement to be a
member, supporter or unit of a political party, however that requirement is described.
This is distinct from circumstances where a member of the university's governing body
is incidentally a member or supporter of a political party.
10. The term "governing body" is intended to capture the body with the highest level of
authority over the university's internal governance, with leadership over the university
and responsibility for strategic oversight and guidance. It is defined broadly to cover the
range of governing bodies in foreign universities however they are described. For
example, a foreign university's governing body may be referred to as the university
council, committee, primary committee, senate, or board of trustees.
11. New paragraph 8(3)(b) provides that substantial control will be indicated where the
education provided or research conducted at the university is required, by a law or the
university's governing documents, to adhere to, or be in service of, political principles or
political doctrines of the foreign government or the political party that forms the foreign
government. The Macquarie Dictionary defines 'adhere to' as 'to be devoted to, to be
attached to as a follower or upholder; to hold closely or firmly to'.
12. The requirement in new paragraph 8(3)(b) will be satisfied where there is a positive
obligation for education provided, and/or research conducted, at the university to adhere
to, follow, uphold or in be in service of, such political principles or political doctrine. In
these universities, academic freedom is compromised by the requirements of political
adherence and service. The requirement would not be met, for example, by a requirement
for education or research at the university to be politically neutral.
13. New paragraph 8(3)(c) provides that substantial control will be indicated where the
university's academic staff are required, by a law or the university's governing
documents, to adhere to, or be in service of, political principles or doctrines referred to in
paragraph (b) in their teaching, research, discussions, publications or public commentary.
Consistent with paragraph 8(3)(b), this requirement will be met where there is a positive
obligation on the university's academic staff.
14. Where one or more of the indicators in paragraphs 8(3)(a)-(c) are met, it is considered
that a foreign government will have substantial control over the foreign university's
internal governance, decision-making and internal academic affairs, such that the foreign
university is not autonomous from the foreign government. In these circumstances, the
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foreign university is considered not to have institutional autonomy and will be a foreign
entity for the purposes of the Bill.
15. The effect of a foreign university being considered not to have institutional autonomy,
and therefore a foreign entity, is that any arrangements between a State/Territory entity,
including Australian public universities, and that foreign university will be considered a
non-core foreign arrangement, as defined under section 4 of the Bill. The
State/Territory entity is therefore required to notify the Minister of the arrangement,
under Part 3 and Schedule 1 to the Bill.
16. If the Minister considers a non-core foreign arrangement adversely affects Australia's
foreign relations or is inconsistent with Australia's foreign policy, the Minister may
declare that the State/Territory entity must not negotiate or enter into the arrangement.
Additionally, the conduct of the foreign university itself will be regulated by the Bill in
some circumstances. For example, the university may be prohibited from giving effect to
certain non-core foreign arrangements.
17. By contrast, universities with institutional autonomy separate from government, with
freedom in relation to their internal governance, curriculum, research, teaching and
discussion, and ability to publish those things, are not within scope of the Bill. This
includes universities with a comparable level of institutional autonomy to Australian
public universities. It is expected that the majority of foreign universities will fall into
this category. Such universities will not satisfy any of the indicators of 'substantial
control' in paragraphs 8(3)(a)-(c).
18. For the avoidance of doubt, government control of a foreign university to a lesser extent
than the indicators in paragraphs 8(3)(a)-(c) would not bring a university in scope. One
or more substantial control indicators in paragraphs 8(3)(a)-(c) are necessary. A foreign
government will not be taken to be in a position to exercise substantial control over a
university merely because the foreign government:
a. provides funding to the university or gives directions to the university about the
intended purposes of such funding; or
b. is in a position to determine the appointment of some members of the university's
governing body; or
c. has a role or function in relation to the university (short of the indicators in
paragraphs 8(3)(a)-(c)) that is conferred under a law or the university's governing
documents.
19. For example, governments often appoint some members of a university board, or
commonly have formal roles and functions in relation to universities in their jurisdiction.
Governments also fund universities. However, these do not indicate substantial control
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without the presence of one or more of the indicators of 'substantial control' in
paragraphs 8(3)(a)-(c).
20. In determining whether a foreign university is taken not to have institutional autonomy,
the requirements in paragraphs 8(3)(a), (b) or (c) must be in laws or the university's
governing documents. Requirements by law may appear, for example, in legislation
establishing the university, national education laws, national higher education laws,
state-based university laws, or associated subordinate legislation.
21. New subsection 8(4) defines the governing documents of a university as the constitution,
rules or other official documents by which the university is constituted or according to
which the university operates. This is relevant to the assessment of the substantial control
indicators set out in paragraphs 8(3)(a)-(c).
22. This definition captures documents governing the university, such as university
constitutions, charters, rules or official policy documents. It is intended to provide clarity
to State/Territory entities (including Australian public universities) on how institutional
autonomy is intended to be assessed. Consideration of these documents, as the
fundamental framework for the operation of foreign universities, is considered to be a
bare minimum level of due diligence for State/Territory entities to have completed prior
to entering into arrangements with foreign universities.
Amendment 3 Page 69 (after line 22), after clause 63
23. This amendment inserts new section 63A, which requires a review of the legislation to be
commenced after three years. The intention of providing for a review is to ensure that the
scheme established by the Bill remains effective and responsive to Australia's foreign
policy interests.
24. New subsection 63A(1) requires a review of the operation of the Act to be commenced
as soon as possible after the third anniversary of the commencement of Parts 2 and 3.
These Parts will commence by Proclamation or, if no date is proclaimed, 3 months after
the Act receives the Royal Assent. The note at the end of this subsection makes it clear
that the review is also to consider the operation of rules made under the Act.
25. New subsection 63A(2) sets out the matters that must be considered by the review. This
will include:
a. whether it is necessary or desirable to do anything to improve the operation of the
Act; and
b. the effectiveness of the Act in meeting its objectives; and
c. whether the Act should be amended to implement review recommendations; and
d. whether a further review of the Act should be undertaken, and if so, when.
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26. New subsection 63A(3) requires a written report of the review to be provided to the
Minister.
27. New subsection 63A(4) requires the report of the review to be tabled in the Parliament of
Australia within a set timeframe. The deadline for tabling the report in each House of
Parliament is within 15 sitting days of that House once the review is completed.
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