Andrew Leigh

HOUSE OF REPRESENTATIVES, 10 NOVEMBER 2020

The bill before the House today is, at a high level, uncontroversial but, in the detail, deeply problematic. At a high level, it's perfectly sensible that the Commonwealth should have oversight over arrangements which states and territories make with foreign entities. But in the detail, this bill could well prohibit arrangements which many of us in this House would regard as desirable. Professor George Williams gave such example. He said:

… let's say, the United Kingdom government. They have a tender of some kind and perhaps the opportunity for a major research agreement—a collaboration dealing with COVID-19. In that case, the UK government may put something like that out to tender or competition. It will be on the basis that the Australian university can only take part in that if we can agree to the terms as preset by the government without any possibility of variation. We can't do that. A tender term is typically, 'You will accept these terms—no variation,' so you run the risk of locking us out of tenders from friendly governments that are highly advantageous to Australia because we no longer have the institutional autonomy that the UK and US universities will have to compete on that playing field.

Professor Williams raised a point, too, which is in complete contradiction to the comments of the member for Goldstein. The member for Goldstein takes the view that the Commonwealth covers the field when it comes to foreign affairs. Professor Williams makes the point that, under our Constitution, there is some degree of shared responsibility. It's on that basis that states and territories have traditionally had overseas trade offices, for example. And, while the government has claimed that the bill is fully constitutional, it has failed to provide evidence to the Senate Foreign Affairs, Defence and Trade Legislation Committee. Professor Williams has said that this could render the law unconstitutional, and it is worrying to those of us on this side of the House that the government hasn't provided clear evidence to show why, in their view, Professor Williams is wrong.

This bill has been terribly rushed in its consultations with stakeholders. The state and territory first ministers were advised only the day before. Universities were not consulted prior to the announcement of the bill on 27 August. The bill doesn't adequately define 'foreign policy' or 'foreign relations'. Nor does it define 'arrangements' or, with respect to foreign universities, 'institutional autonomy'. That means that it's possible that the bill in its current form encompasses tens of thousands of administrative arrangements, potentially even capturing emails. And yet, while it's so vague, it also has a clear omission, which is that private universities or other educational bodies are left out. It's like the flip of the way in which JobKeeper applied only to benefit private universities, with public universities being left out. I feel as though every time universities are considered by this government, there's always a little carve out for private institutions so they're put in a better position than public institutions. But there's no clear public policy reason why Bond University should be treated differently from the University of Queensland when it comes to dealing with foreign governments. Let's get that right.

The lack of transparency is also a concern which was raised by the Senate committee. As dissenting senators pointed out, there simply isn't the ability for appropriate oversight as to the arrangements which are being pursued. Labor believe that we ought to have additional oversight provisions, and it's because of that that we have called for an appropriate oversight mechanism and an annual report to the parliament by the minister outlining engagement with entities covered by the bill, to articulate and explain Australia's foreign policy and how entities should engage with foreign entities in Australia's national interest.

Labor senators have also pointed out that the Department of Foreign Affairs and Trade does not engage systematically with Australian entities covered in the bill. It does so on an ad hoc basis only. These concerns have been raised by stakeholders. The University of Western Australia has said that the lack of definition means it's impossible for Australian universities to make a meaningful assessment of what would be within the bill's scope. All universities—bar one—that made submissions contended the bill would significantly impact their ability to maintain productive international partnerships and sustain Australia's world-class research capacity. According to work done by the Australia China Relations Institute, Australia's number one scientific research partner is China.

There is a range of research collaborations taking place between Australia and China, many of which are in areas such as medical sciences, which should be encouraged, and it's important to ensure that that work isn't damaged.

What is particularly striking about this bill to me is to see it in the light of another bill which is before the House, the Higher Education Support Amendment (Freedom of Speech) Bill 2020. That's a completely unnecessary bill which is before the House only because the government did a dodgy deal with One Nation to support its cuts to universities. There's no freedom-of-speech issue on Australian campuses. The French review found that claims of a freedom of speech crisis on Australian campuses were 'not substantiated' and there is 'no evidence of a free speech crisis on Australian campuses'.

However, the government has decided, nonetheless, to insert a definition of academic freedom in the Higher Education Standards Act and the Tertiary Education Quality and Standards Agency Act, which protects in part 'the freedom of academic staff and students to engage in intellectual inquiry, to express their opinions and beliefs, and to contribute to public debate, in relation to their subjects of study and research'. But it should say 'with the exception of the freedom to engage with international entities', because that freedom is curtailed by the government's other bill. It's characteristic of the way in which this government's ham-fisted approach to public policy plays out in this parliament. The government are just unable to think consistently about how they want universities to engage. On the one hand, they're saying 'more freedom, more freedom'; on the other hand, they're saying 'less freedom, less freedom'. It's important to recognise that we are not in a monolithic world. There are people at Australian universities who will have different views of the government and that's one of the great strengths of a democracy. We need to be very careful to curtail differing voices, to take foreign policy back to the 1950s.

The submission to the Senate inquiry by Yun Jiang and Adam Ni from the China Policy Centre also pointed out the sheer breadth of Australian foreign policy in the bill, saying:

Such policy need not be written, publicly available, or even have been formulated. This means the Minister have substantial power to prohibit any agreement the State or Territory government makes with foreign governments. For example, if the Commonwealth Government's position was to commit to zero carbon emission and to support renewable energy export, then the Commonwealth can potentially prohibit any State or Territory government's agreement with foreign governments that may increase carbon emission or support coal and gas export.

They went on to point out that modern diplomacy has evolved, that it is potentially anachronistic to curtail voices of non-profit organisations, corporations, international organisations that may well have divergent views on foreign policy. To have the notion that state and territory governments should speak with the same voice as the federal government is one thing. But to then say that everyone in an Australian university should similarly speak with the same voice takes the matter a great deal further and could, indeed, imperil freedom of speech on Australian campuses.

The submitters Yun Jiang and Adam Ni also say that, under the proposed bill, the 'minister can reconsider the relevant agreements at any time, even if it was previously approved.' This means all the agreements could be reconsidered any time there is a change in Australia's foreign policy, noting the minister is not required to identify a particular written policy, and the 'policy need not be written or even have been formulated'. They point out that this creates significant uncertainty for state and territory governments and public entities.

The dissenting report from Labor senators points out that the bill does not allow for any process of review or appeal by affected entities of ministerial decisions, that it excludes procedural fairness, that it doesn't provide appropriate transparency. The Northern Territory government stated that the bill 'potentially leaves State and Territory Governments exposed to significant loss and damages' and that the bill should provide compensation for state and territory governments 'beyond acquisition of property'. Other witnesses have raised a concern that the bill could introduce commercial uncertainty, thereby putting Australian jobs at risk across industries large and small. The lack of state government perspectives on the inquiry was also noted, and senators called on state and territory governments to be encouraged to provide their views on a redrafted bill. It is going to be necessary to redraft this bill; it simply isn't fit for purpose.

Labor supports the notion of the federal government playing a crucial leading role when it comes to foreign policy, but we need to do that with a sophistication that recognises the value that Australian universities bring, that recognises the constitutional issues and the way in which powers are shared, that provides appropriate transparency and that provides proper oversight and reporting back to parliament.

ENDS

Authorised by Paul Erickson, ALP, Canberra.