Policy Foreign Arrangements Notification Procedure

Foreign Arrangements Notification Procedure

Intent

The Foreign Relations (State and Territory Arrangements) Act 2020 (the Act) creates a Scheme to ensure that arrangements between State or Territory governments and foreign government entities do not adversely affect Australia’s foreign relations and are not inconsistent with Australia’s foreign policy. James Cook University (JCU) as a public sector entity is captured by the notification requirements of the Scheme.

This Procedure outlines the requirements and responsibilities for notifying government of the University’s foreign arrangements captured by the Scheme. It does not replace those JCU policies, procedures, and accountabilities which govern the establishment and management of international agreements, contracts, joint ventures, MOUs and partnerships.

Scope

The Procedure applies to foreign arrangements entered into by staff of the University while engaged in University business or otherwise representing the University with a foreign government or a foreign university that lacks institutional autonomy.

Definitions

Except as otherwise specified in this Procedure, the meaning of terms used are as per the Policy Glossary.

Foreign Arrangement	As per the Foreign Arrangements Scheme, any written arrangements, agreements, contracts, understandings or undertakings between State and Territory entities and foreign entities. They may be legally-binding or not legally-binding. This includes grant applications.
Foreign Government	Under the Act, a foreign government includes a foreign national or sub-national government (including a department, agency or other public authority of that government). Some foreign tertiary education institutions, such as government military academies, would be considered part of the foreign government.
Institutional autonomy	A foreign university does not have institutional autonomy when it is substantially under the control of a foreign government (including government or political appointees to the governing body), or its education, research or the academic staff are required by a law or the university’s governing documents to adhere to political principles or doctrine. A foreign university’s governing body may be referred to as the university council, committee, primary committee, senate, or board of trustees. 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 Act.
Non-core arrangements	For the purposes of the Scheme, Australian public universities are considered non-core State/Territory entities and therefore can only enter into non-core foreign arrangements. A non-core foreign arrangement is an arrangement between: – a non-core State/Territory entity and a core foreign entity, or – a non-core State/Territory entity and a non-core foreign entity.

Scheme Application
1.1  The Scheme provides a process for States and Territories and their entities to notify the Minister for Foreign Affairs (the Minister) if they propose to enter, or enter, a foreign arrangement. It creates obligations in respect of both future arrangements and existing arrangements.
1.2  The scheme creates an ‘approval’ process for arrangements known as ‘core foreign arrangements’ and a ‘notification’ process for arrangements known as ‘non-core foreign arrangements’. All JCU arrangements are ‘non-core arrangements’.
1.3  The scheme only applies to JCU when the University proposes to enter an arrangement with a foreign government or a foreign university that lacks institutional autonomy. JCU must then also notify the Minister within 14 days of when the arrangement has been entered into.
1.4  A university-to-university arrangement is not required to be notified unless the arrangement is between JCU and:
1.4.1 a foreign tertiary education institution that is a part of a foreign government (eg, a government military academy), or
1.4.2 a foreign university that lacks institutional autonomy because it is substantially under the control of a foreign government.
1.5  A foreign university does not have institutional autonomy when it is substantially under the control of a foreign government. A foreign university is taken to be substantially under the control of a foreign government only if one or more of the following applies:
1.5.1 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;
1.5.2 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;
1.5.3 and/or 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 of the foreign government or the political party that forms the foreign government, in their teaching, research, discussions, publications or public commentary.
1.6  The vast majority of foreign universities do not meet these criteria. Universities with similar levels of institutional autonomy to Australian universities (eg, Members of the Russell Group of universities in the United Kingdom) do not meet these criteria. Accordingly, arrangements between these universities and JCU do not need to be notified.
1.7  JCU is to notify the Minister of a grant application at the stage when both parties have committed to progress the grant arrangement but before the arrangement is signed or commitments finalised. JCU will not need to notify the Minister when a grant application is submitted and that application has not been agreed to by the entity administering the grant (ie, an unsuccessful grant application).
1.8  A checklist to assist identifying what arrangements or proposed arrangements need to be notified is at Appendix 1. A DFAT matrix to assess Institutional Autonomy is at Appendix 2 providing guidance, example questions, and advice on sources to consider in checking whether laws and governing documents meet any of the requirements set out in the three indicators at 1.5 above.
Exemptions from notification
2.1 Certain arrangements are exempt from being notified where they deal solely with minor administrative or logistical matters. For example, where JCU enters an arrangement with a foreign government or a foreign university that does not have institutional autonomy but the arrangement deals only with flights, accommodation, submission of paperwork, visa applications, or the timing of conference sessions.
2.2 Similarly, where JCU varies an existing arrangement without altering its substance (e.g. by changing the number of students involved in a student exchange), that variation is exempted for the requirement to notify.
Minister’s declarations
3.1  The Minister may make a declaration prohibiting JCU from negotiating or entering a non-core arrangement if satisfied that the negotiation or arrangement:
3.1.1 would adversely affect, or would be likely to adversely affect, Australia’s foreign relations; or
3.1.2 would be, or would be likely to be, inconsistent with Australia’s foreign policy.
3.2  The Minister must make a decision within 30 days or the Minister is taken to have given approval.
3.3  If a non-core arrangement is entered into in contravention of a declaration, the Minister may make a further declaration that the arrangement is invalid and unenforceable, required to be terminated, or not in operation.
Transition arrangements - foreign arrangements already in operation
4.1 Non-core foreign arrangements will need to be notified by 10 June 2021. The Minister may make a declaration that such an arrangement is invalid and unenforceable, required to be varied or terminated, or not in operation if satisfied the arrangement would adversely affect Australia’s foreign relations or is inconsistent with Australia’s foreign policy.
Lodging
5.1 To administer the Scheme, the Department of Foreign Affairs and Trade (DFAT) Foreign Interference Taskforce has developed the Foreign Arrangements Scheme Online Portal. The Portal can be accessed on the Foreign Arrangements Scheme website. Currently, DFAT only allows for one contact per organisation. JCU’s officer for entering arrangements on the portal is the Chief of Staff.
5.2 Notifications to the Minister on the Portal include:
- Notifying of core foreign arrangement (not applicable for JCU)
- Notifying of failure to notify the Minister of a core foreign arrangement
- Notifying of non-core foreign arrangement
- Notifying of compliance with a Ministerial declaration
5.3 Where an existing arrangement meets the requirement to be notified to the Minister, a copy of the arrangement is to be emailed to the Chief of Staff with the subject line: Foreign Arrangement: Existing to be Notified. The following information must be included:
- the name of the arrangement;
- the parties to the arrangement;
- a brief statement summarising the subject matter and effect of the arrangement;
- the date the arrangement was entered, the duration of the arrangement and any other relevant timeframes in relation to the arrangement;
- whether the arrangement is legally binding under an Australian law, legally binding under a foreign law or not legally binding; and
- a brief statement summarising the details of any information that JCU requests the Minister not to include on the Public Register and the reasons for the request.
5.4 Where JCU proposes to enter and arrangement, a covering summary with details on the parties, intended purpose and effect of the arrangement proposed, relevant dates and any draft documents are to be emailed to the Chief of Staff with the subject line: Foreign Arrangement: Proposal to Enter
5.5 Where JCU has entered into the proposed arrangement previously notified, the signed arrangement is to be emailed to the Chief of Staff with the subject line: Foreign Arrangement: Entered and the following information:
- a covering summary with the name of the arrangement,
- any changes to the final arrangement from that originally proposed,
- the date the arrangement was entered, the duration of the arrangement and any other relevant timeframes in relation to the arrangement;
- whether the arrangement is legally binding under an Australian law, legally binding under a foreign law or not legally binding; and
- a brief statement summarising the details of any information that JCU requests the Minister not to include on the Public Register and the reasons for the request.
5.6 At any time, JCU may receive a notification on the assessment status of either an existing arrangement, a proposed arrangement or an arrangement entered into.
Public Register
6.1 The public register contains details of each foreign arrangement and subsidiary arrangement of a foreign arrangement for which a State/Territory entity has given a notice to the Minister under the Act, and any decisions the Minister has made under the Act.