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The Australian Government supports safe and transparent international collaborations through a variety of legislative approaches. While not all of these are directly related to foreign interference, these complementary approaches form a layered approach to protect Australia’s sovereignty, values and national interests. The Guidelines, which set out internal processes for universities to manage risk and conduct due diligence, are supported by the following Government legislation:
National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018
In June 2018, the Australian Parliament passed legislation, which criminalises foreign interference and strengthens our ability to successfully prosecute acts of espionage National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018. These laws criminalise covert and deceptive or threatening activities by persons intending to interfere with Australia’s democratic systems and processes, or support the intelligence activities of a foreign government. The laws also introduce offences for preparing or planning foreign interference, which gives law enforcement agencies the means to investigate preparatory conduct and arrest a person before Australia’s national security is prejudiced or the national security of a foreign country is advantaged.
Security Legislation Amendment (Critical Infrastructure) Bill 2020
The reforms to the Security of Critical Infrastructure Act 2018 seek to enhance security and resilience of critical infrastructure assets, by managing the complex and evolving risks to Australia’s critical infrastructure, including those posed by foreign interference.
The reforms will expand legislative coverage to include the ‘higher education and research sector’ (amongst others) as a critical infrastructure sector. In the event of a serious cyber security incident, these institutions, which contribute significantly to the Australian economy, competitiveness, skilled workforce, and Australia’s global standing, both as quality providers of education and as cutting-edge research institutions, would be covered by the proposed government assistance measures. Where necessary, the Government will support these institutions during or following a serious cyber security incident.
The Bill also introduces Positive Security Obligations for entities responsible for critical infrastructure assets, including a requirement to report ownership and operational information to the Register of Critical Infrastructure assets, a requirement to notify Government of cyber security incidents and a requirement for entities to adopt, comply with, and keep up-to-date, a risk management program supported by sector-specific requirements, co-designed with industry.
Each of these three obligations can individually be ‘switched on’ for particular critical infrastructure assets. If an obligation is switched on for a critical infrastructure asset, responsible entities for the critical infrastructure asset are required to comply with this obligation. The obligations only apply as required and in circumstances where existing regulatory arrangements are deemed to be ineffective or insufficient, avoiding regulatory duplication. In light of the update of the Guidelines to counter foreign interference in Australian universities, it is likely that only the cyber incident reporting obligation will be ‘switched on’ for Australian universities at this time. A better identification and sharing of major cyber incidents can contribute towards improved cyber security for Australian universities and for the wider economy.
Australia’s Foreign Relations (State and Territory Arrangements) Act 2020
Under the Foreign Arrangements Scheme, established by the Australia’s Foreign Relations (State and Territory Arrangements) Act 2020, universities are required to notify the Minister for Foreign Affairs if they propose to enter an arrangement with a foreign government or foreign university that does not have institutional autonomy. This is to ensure that such arrangements do not adversely affect Australia’s foreign relations and are not inconsistent with Australia’s foreign policy.
Further information can be found on the Foreign Affairs website, Foreign Arrangements Scheme.
Foreign Influence Transparency Scheme Act 2018
The Foreign Influence Transparency Scheme was established by the Australian Government as part of the Foreign Influence Transparency Scheme Act 2018 to provide the Australian public and Australian Government decision-makers with visibility of the nature, level and extent of foreign influence on Australia's government and political process. The scheme introduces registration obligations for persons and entities who have arrangements with, and undertake certain activities on behalf of, foreign principals. The scheme does not apply to Commonwealth, State or Territory instrumentalities, and includes exemptions from registration for particular entities or activities (for example, for lobbying or communications activities undertaken by registered charities on behalf of a foreign principal). Universities may need to consider whether the scheme applies to them, or whether entities they establish or persons or entities that they deal with may have registration obligations under the scheme.
Customs Act 1901
Under the Customs Act 1901, tangible items listed on the Defence and Strategic Goods List (DSGL) require a Defence Export Controls (DEC) permit to be transferred from Australia to overseas. DEC permits are issued and approved by Minister for Defence and must also be accompanied by a Customs Declaration for export purposes.
The export of controlled technology- e.g. printed blueprints, plans or DSGL technology on storage devices such as USB or laptops - by tangible means is also controlled by the Customs Act 1901 and requires a DEC permit. This includes scenarios where the media storage device is sent via postal service or is carried in hand-held or checked luggage. Researchers should ensure they have obtained appropriate permits or licences as may be required for any materials that are to be exported well in advance. Customs Declarations may be supplied by a customs broker if you are using one.
Defence Trade Controls Act 2012
The Defence Trade Controls Act 2012 (DTCA) controls the supply, publication and brokering of tangible, intangible military and dual-use goods and technologies. It allows the Minister for Defence to permit or prohibit the supply, publication and/or brokering of goods and technologies. Reforms to the Act to strengthen protection of sensitive technologies are being implemented.
The Australian Government Defence Export Controls scheme enables the export of defence and strategic goods and technologies or related information where it is consistent with Australia’s national interests and international obligations. It applies to anyone exporting regulated goods/technologies from Australia or transferring information from Australia, for example commercial items and technologies that may be used or adapted for use in a military program.
Autonomous Sanctions Act 2011 and the Charter of the United Nations Act 1945
In response to a situation of international concern, Australia and/or the United Nations Security Council (UNSC) may impose a sanctions regime. Regimes are usually described by reference to a specific country. UNSC sanctions regimes are implemented into Australian law under the Charter of the United Nations Act 1945 and its regulations. Australian autonomous sanctions are implemented under the Autonomous Sanctions Act 2011 and the Autonomous Sanctions Regulations 2011. The Australian Sanctions Office in DFAT administers Australia’s sanctions laws. A number of university activities may give rise to risks under Australia’s sanctions laws, including the provision of technical advice, assistance or training, the enrolment of students from sanctioned regimes, and collaboration with other institutions. Under Australia’s sanctions regimes, universities, like all regulated entities, are responsible for undertaking the due diligence checks necessary to ensure their activities comply with Australian sanctions laws. Such due diligence checks include: reviewing the Consolidated List to ensure persons or entities connected with such activities are not subject to targeted financial sanctions; and conducting risk assessments on projects which may either involve individuals or entities from sanctioned regimes, or individuals or entities potentially in receipt of funding from a person or entity on the Consolidated List.
Weapons of Mass Destruction (Prevention of Proliferation) Act 1995
The Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 prohibits the supply or export of goods that will or may be used in, and the provision of services that will or may assist, the development, production, acquisition or stockpiling of weapons capable of causing mass destruction or missiles capable of delivering such weapons. The Minister for Defence is authorised to issue a permit to supply or export the relevant goods or the provision of services if it aligns with Australia’s international and/or treaty obligations or the national interest.
Model Code on Freedom of Speech and Academic Freedom
In April 2019, the Australian Government accepted all three recommendations of former Chief Justice of the High Court, the Hon Mr Robert French AC’s Independent Review of Freedom of Speech in Australian Higher Education Providers, including that:
- higher education providers should adopt his proposed Model Code for the Protection of Freedom of Speech and Academic Freedom in Australian Higher Education Providers
- both the Higher Education Support Act 2003 (HESA) and the Higher Education Standards Framework Threshold Standards should be amended to replace reference to ‘freedom of intellectual inquiry’ with ‘freedom of speech and academic freedom’
- the Model Code definition of academic freedom should be included in HESA.
As of September 2021, all Table A and Table B universities have policies on freedom of speech and academic freedom that are fully or mostly aligned with the Model Code.
The Australian Parliament passed legislation to amend the HESA 2003 in March 2021, to require universities to have a policy that upholds freedom of speech and academic freedom, and introduce a definition of academic freedom that is consistent with the provisions in the Model Code.
The Minister for Education and Youth is in the process of amending the Threshold Standards to replace reference to ‘freedom of intellectual inquiry’ with ‘freedom of speech and academic freedom’, to maintain consistency of language between relevant statutes and university policies that are aligned with the Model Code.