Tuesday, 1 December 2020
Australia's Foreign Relations (State and Territory Arrangements) Bill 2020, Australia's Foreign Relations (State and Territory Arrangements) (Consequential Amendments) Bill 2020; In Committee
I have a question to the minister. It is one that I have been asking for some time. The Department of Foreign Affairs and Trade were going to answer it, but then they went away and they came back and started to talk about 'iterative processes', which is always a pretty clear indication that they don't want to answer a question. So I'm now going to ask the minister when Australian universities were added to the bill.
Thank you, Senator Wong. I don't have that detail with me today but, as per the indications I made in my summing-up speech, there have been discussions with universities through this process, including a meeting Minister Tehan and I had with universities in the break between sitting weeks, and the consultations that the Department of Foreign Affairs and Trade have had regularly. I have dates of those consultations, I think, in my notes here, but they go through the period of time since the bill was introduced. I have to confirm and advise, Chair, that the inclusion of universities in the bill, in one way or another, is a matter that was always in contemplation.
A government senator interjecting—
How about you tell them not to interject as well as telling me to ignore it? That would at least be even-handed—yes? I'll make the point that it is not true to say they were always in contemplation, unless the government simply thinks that refusing to talk to stakeholders is appropriate. The universities of Australia have said they were blindsided. They didn't receive information. They were not told they were in the bill. They didn't receive a copy of the bill. They found out in the announcement. So I find it hard to accept the minister's assertion that they were always in contemplation. That is simply at odds with the evidence that the Senate committee heard, but also, importantly, at the Senate estimates.
I'd also make this point: I actually think there is a meritorious argument to include universities. I think the way in which this was done lacked the sort of engagement you would want. If you're actually serious about enhancing the nation's resilience, resilience to foreign interference and resilience to the sorts of challenges Australia faces, it's not simply engendered by a veto power that rests with the minister; it's also engaging with the entities, with institutions that are important to our democracy, whether it's parliamentarians, the parliament or the university sector, about what they both should and should not do in order to safeguard our sovereignty. There's a positive as well as a negative responsibility on government, not just veto but actually helping people do the right thing in the first place. That was the logic behind the University Foreign Interference Taskforce. That is the process in which they were engaged. And then they end up in legislation which they had no foresight of or consultation around. I think that really does undermine the minister's assertion to this chamber that they were always in contemplation. If she's telling the truth there, why didn't she tell them?
The TEMPORARY CHAIR: Order! Senator Wong—
If she's accurate—what would you like me to say?
The TEMPORARY CHAIR: 'Accurate' would be a better word.
Yes, sure. If she's accurate there, if her assertion is accurate, why didn't she tell them? Surely you'd actually engage with our fourth-largest export industry and institutions that are important to our democracy. They're not just about professional training; they're about ideas and research. Surely the government would engage with them. Why didn't the minister engage with them personally before announcing that they'd be covered by this legislation? That is the question.
I think the expectation, given that Australian public universities are publicly funded institutions established by state and territory law with a fundamental role in international research and partnerships, is that they would be included. They enter arrangements with foreign entities that do have the potential to affect Australia's foreign relations and foreign policy. But, as has been said in discussions—including those that I have had and Minister Tehan has had—we do expect the majority of routine engagement between Australian universities and their foreign counterparts to continue, notwithstanding the requirements of the bill to notify the minister of certain arrangements, as we have said previously.
Importantly, I want to reassure those opposite and those in the chamber that the bill is not intended to impede the beneficial business of universities with their foreign counterparts. Let me reinforce that it is expected that much of the routine business of universities will proceed as normal.
I listened to the minister's answer to Senator Wong's question carefully. But I don't accept that the level of care and attention to the inclusion of the university sector is the way that the minister has characterised it. The evidence provided to the committee and the evidence provided during the estimates process clearly sets out that the university sector was never consulted during the process of the bill being established.
The Australian university sector is a critical national institution. Our university sector is perhaps more important to us as a country than university sectors are in comparable countries. It is critical because, depending on the year, it's our third or fourth largest exporter. Our export of education services to people around the world is of enormous material benefit to Australia, but it also has enormous soft power and soft diplomacy potential, a potential that has never been taken seriously by this government. It's the potential to have thousands of people who have had a good experience of their education in Australia, in a liberal democracy and in institutions that value teaching and learning to spend the rest of their professional careers in countries all over the globe, in countries that Australia hopes to have good relationships with, as advocates for Australia, as people who have deep relationships with Australians in the public service and in business. We have squandered that capacity. We have squandered that soft diplomacy capacity no more at any other time than we have over the course of the last 12 months.
Universities are profoundly important in a country that occupies a big continent with a growing population that is reliant upon them for its future prosperity and security. Our universities are fundamental as places of innovation and research, product development, the development of ideas, the development of ways of managing our economy more effectively and more efficiently and making sure that when we improve the economy it lifts the living circumstances of every Australian and the strength and resilience of our democracy. Universities are deeply important.
But there is a profound hostility on behalf of some members of the coalition to the university sector. You may shake your head, Minister Payne, but at every opportunity some of these characters are out there denigrating our universities and driving a completely hostile and wholly negative government approach to the university sector. How else could you explain what has happened to the university sector this year that's culminated in this zero consultation bill that seeks to regulate the operations of universities in terms of their research work with overseas institutions? At the beginning of the year, when the coronavirus pandemic implications for Australia became clear, the Prime Minister's message to foreign students was, 'Go home.' It was not, 'We're going to look after you.' It was not, 'We're going to support you.' It was not, 'We're going to include you in the government's package to make sure that you are looked after and have decent access to work.' The message was, 'Go home.' When I walked through the inner suburbs of Sydney—I'm fortunate enough to live in a university district, sandwiched between the University of Sydney and the University of Technology Sydney—what I saw in my suburbs were two things that should never have been seen: furniture tossed out on the street as overseas students were pushed out of rental accommodation and food queues. I saw food queues in Australia for overseas students. How could this be?
Our contract as a country when educating young people in Australia is not just a commercial transaction. It should be, if we've got an eye to our soft diplomacy and relationship issues with other countries, a solemn contract between us and the parents of those young people that we will look after their kids. Can you imagine if you'd sent your kids to an overseas jurisdiction and that was the treatment meted out to them? That's what happened during the coronavirus to the university sector. It's done untold damage to the capacity of the sector to market its services around the world.
We saw a botched and mismanaged approach to university fees, with an absurd set of propositions that you would think that the party of the free market would be on top of. If you make it cheaper to do the courses that you want people to do but deliver less income to the people who deliver the courses that you say you want students to do, guess what that means? Cut classes, fewer tutors, fewer resources, bleeding universities dry and bleeding the very parts of the universities that you want to cut because of some misplaced hostility that some creatures on the coalition backbench have to the liberal arts and some courses that are pursued. I know that some of these backbenchers probably turned up to their first tutorial and were talked over by somebody who'd done that week's reading. This was a bitter humiliation for them and I understand their hostility to the arts and a series of these important things. So that was the second wave of hostile change.
Now we have this: no package for the universities in terms of the coronavirus; a terrible message sent to overseas students and to people in the sector; and we have zero consultation. I agree with Senator Wong: there absolutely is room for more improvement and effective regulation of the university sector. Universities are global institutions. They are required to undertake effective research, whether it's sequencing the coronavirus genome, developing the Gardasil vaccine or whatever the work is, and that requires global collaboration. And in many cases it will require collaboration with universities in the People's Republic of China. That is no excuse for zero consultation with the university sector, because that doesn't send a message that the Commonwealth is here to help, here to enable more institutional resilience and here to support academics and university administrations to make sure that they get their engagement with overseas universities right—that there is probity, a regard for the national interest and transparency. None of those things has happened; the message instead is a punitive one. It's about a veto, not a process, and it completely flies in the face of all the other efforts the government has made to improve the sector's resilience and effectiveness.
My questions are: does the minister support more or less collaboration between Australian universities and overseas universities? Does the minister believe that the amount of research collaboration between Australian universities and overseas universities will increase or decrease as a result of the legislation? How will that work be supported and evaluated over the coming 12 months, two years and three years with the review provisions of the proposed legislation?
Senator Ayres has waxed widely on matters of education policy. But, to be very specific about this bill, I want to be clear and repeat that the bill is not intended to impede the beneficial business of universities with their foreign counterparts, which is strongly valued by this government—as indicated by a number of examples that the Senator has referred to, particularly in relation to vaccine development. Indeed, it's expected that much of the routine business of universities will proceed as normal. Not all university-to-university arrangements will be within scope. The bill addresses only certain arrangements between Australian public universities and foreign universities that are an agency or department of a foreign government—for example, a military university that does not have institutional autonomy. In addition to that, the foreign minister will make rules that exempt arrangements that deal solely with minor administrative or logistical matters and variations to arrangements that don't alter the substance of the arrangement.
What the bill does is to categorise arrangements that are in scope into two tiers to ensure the less burdensome notification process applies to arrangements that have less potential to impact Australia's foreign policy. For that reason, the universities are subject to the notification scheme and may proceed with foreign arrangements without specifically awaiting the minister's approval, enabling them to get on with the sort of business that, in his wide-ranging comments, Senator Ayres in part referred to.
Minister, I've been listening very carefully to your speech so far today where you talk of having a collaborative approach, that this is not intended to impede the work of universities, and that it will only affect things that are within scope. What I want to ask is: when are the universities going to know whether or not things are within scope? The way that this legislation is currently drafted, it essentially talks about arrangements. The definition of 'arrangements' in the bill is 'any written arrangement, agreement, contract, understanding or undertaking'. At this stage, the universities don't know which of their arrangements are going to be, in your words, 'in scope'. What they can see is that there's going to be a massive regulatory burden in having to report on every arrangement and agreement they have with any foreign university or any foreign agency of a government, without knowing whether it is, to use your words, 'in scope'.
You talked also of things being exempted. Can you also tell me what your intention is at the moment? What is the definition of 'things'? What do you intend to exempt? I understand that the universities, according to the legislation, have got to report on all of their arrangements within six months. Is that six months going to start when they know what is exempt and what is within scope? When are they going to know?
As has been discussed and as was discussed, as I understand it, in the context of the committee hearings, the arrangements which are not in scope that I referred to in relation to the rules—exempt arrangements—will be those that deal with minor administrative or logistical matters; for example, travel visa applications, accommodation, the submission of paperwork, the timing of conferences or conference sessions and variations to arrangements that don't alter the substance of the arrangement. Part of the process will using the task force established within the Department of Foreign Affairs and Trade for this purpose to work with state and territory governments and local governments and their respective agencies, as well as universities, to inform, as this process gets underway, the six-month period during which universities will be required to bring forward those arrangements that they have with universities which fall within the definition—those which don't have institutional autonomy. I think it is important to remind ourselves that we are not talking about every arrangement that a university has with another university. It is about arrangements that universities have with universities that don't enjoy institutional autonomy. Those are the discussions which the Department of Foreign Affairs and Trade, the Minister for Education and myself have been having, through this process, with universities.
I have a follow-up question. You talk about minor logistical arrangements such as the timing of workshops and conferences. How about if there was a change in who was appearing at a conference or which researchers were going to be at a workshop or a conference that was being organised by these universities jointly?
I want to rise to make a brief contribution in this discussion about universities' involvement in this bill. I note, having listened carefully to the contributions made by Labor senators, that both Senator Wong and Senator Ayres noted they agreed that universities should be included in this agreement. I think that's an important bipartisan consensus which recognises that—
I would have thought, given his long experience in this chamber, Senator Patrick would know that any senator has a right to stand up to contribute to debate in committee.
There is bipartisan consensus across the chamber that universities should be included in this bill. That is an important thing, which I think is in recognition of the fact that universities have not always prudently managed their international relations. Indeed, there is bipartisan agreement that the Parliamentary Joint Committee on Intelligence and Security should be conducting an inquiry right now into foreign interference at our universities, which stems from widespread concerns held by senators from across the chamber about incidents at a number of our universities. To take one example, the University of Queensland have themselves acknowledged that the agreement they struck with Hanban over their Confucius Institute initially did not have sufficient safeguards for academic freedom and autonomy of the university, and they have set about renegotiating that agreement to include better protections. That is one of many examples we could go into that demonstrate why universities do indeed need to be included in this bill.
The disagreement that appears to exist across the chamber is about the extent of consultation on this issue. In my short time in this place I've observed that there's a lot of disagreement about what constitutes consultation. Sometimes, when people say a group was not adequately consulted what they really mean is that a group has not consented to its involvement in a bill, has not been given a veto power, has not been given the right to dictate whether or not it should be involved in a bill, whereas in this case—
Opposition senators interjecting—
In this case, Senator Wong—thank you; I'll take your interjection—what occurred is that universities were appropriately informed of their inclusion in this bill, were then—
Senator Wong interjecting—
Indeed, and thank you, Senator Wong. It's interesting that you think universities should have privileged access to government policy announcements before they are made.
Thank you, Senator Wong. Indeed, they were told that they were included—as they should be—and then had the opportunity to have their input, both directly to the Department of Foreign Affairs and Trade about the provisions of the bill and through a Senate inquiry of the very committee that this Senate has formed to consider the bill. So the universities have been consulted. They didn't have privileged access to a government announcement before it was made, as indeed that wasn't appropriate. As the minister observed, it would be absurd if they, as publicly funded institutions established under state and territory legislation, were not included in this bill, which I think is a point of agreement across the chamber.
Can I again ask the minister my question. Okay, we are not going to include minor administrative arrangements. When are universities going to know what falls into that category? Would something like a change of personnel on a workshop or conference have to be notified?
Thank you very much, Senator Rice. The DFAT website has been updated with information that is intended to assist stakeholders to understand their compliance obligations. That currently includes fact sheets. It will soon include Q and A documents, subject to the passage of the legislation. It will also include information, such as the means for notifying the minister of arrangements, further to that which is already on the website.
We will be working very closely with stakeholders on the implementation of the scheme. That is the purpose of establishing the foreign relations task force within the Department of Foreign Affairs and Trade. It's the purpose of the engagements that DFAT has had with the sector in the consultations and discussions on the provisions of the bill. What we are doing is making sure that the Department of Foreign Affairs and Trade is working very closely with key entities, both the representative bodies and the universities themselves, to ensure the smoothest introduction of the scheme that we possibly can.
I want to ask about the Port of Darwin. Is the lease of the Port of Darwin to a Chinese company for 99 years against Australia's national interests?
That matter has of course been ventilated regularly since the decision was taken in 2015, if I recall correctly. What this government has done is ensure that we have implemented legislative provisions that now enable government to address those sorts of issues and to consider them appropriately in the context of foreign relations, foreign policy and the Foreign Investment Review Board as well.
A retrospective looking glass is not a piece of kit that I have in my repertoire, Senator—I don't know about you. Obviously, these things are subject to circumstances at the time and are considered by governments at the time. If such a proposition were to be put to government now, what I would say, most importantly, is that this government has in place legislation which allows the government to address this.
As I have said in relation to other similar questions which have been asked publicly in discussions on this issue, I actually don't think it's appropriate to pre-empt the implementation of this legislation and then the processes which will be required of the foreign minister to examine such issues under it. I'm not privy, for example, to the details of such an arrangement or commercial agreement between the Northern Territory government and the business concerned. I would expect that a responsible approach to matters such as this, and others which have also been asked of me, would be to ensure that, in the stocktake process, where the Commonwealth government receives from state and territory governments advice of arrangements into which they have entered, the details and context of those arrangements are provided. That will enable the foreign minister, whoever he or she is at the time, to make those decisions. But pre-empting that consideration is I think inappropriate.
I'll firstly comment on my remarks in relation to Senator Paterson's comments. I wasn't seeking to stop or prevent him from raising a particular issue, I just note that normally in the committee stage we work together by allowing a question to be asked and then answered. We give everyone a fair shot. I know that it's not the usual process for a government backbencher to appear in the committee stage—normally that's a signal of filibustering. I wasn't in any way seeking to fetter him from making a contribution; it was just about the orderly manner in which we normally conduct this process.
I note that there's very little time here, so I'll just foreshadow to the minister that I have a concern in relation to the lack of judicial review in respect of this bill. I note that judicial review is prohibited through the consequential bill in respect of the Administrative Decisions (Judicial Review) Act, which of course can't restrict a constitutional writ being brought against the minister. When we reconvene after question time, I'll be interested in understanding the different thresholds associated with a constitutional writ appeal versus an appeal under the Administrative Decisions (Judicial Review) Act.
I'm not going to comment on the specific advice on a matter such as that, which was provided to me as the minister in the drafting process. The drafting process was a very long and complex one. It considered a broad range of implications of the act. Clearly, that agreement about the Port of Darwin—a commercial arrangement—is one which would now be covered by the Foreign Investment Review Board. That is a reform that this government has introduced, a commitment that this government made to address those concerns, and one which is an important part, as I said in my summing-up speech, of the government's initiatives to protect our national security and to protect Australia's interests.