Foreign arrangements scheme

The Foreign Arrangements Scheme (the Scheme) establishes a formal notification process that applies to all Australian public universities. 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'. As a public university, UOW is defined as a non-core entity and as such most of our FAs will be defined as non-core, unless we are in a consortium agreement that includes the Australian government. In such case the Australian government agency is responsible for reporting the core arrangement.

A foreign arrangement is a written agreement, contract, understanding or undertaking between an Australian State/Territory entity and a foreign entity, whether or not there are any other parties to the arrangement or whether it is legally binding or not. 

Broadly speaking a foreign arrangement is notifiable to DFAT if it meets the following criteria:

• is in writing
• commits the university to an activity/ies
• is with a foreign government, or agency, or a foreign institution that lacks autonomy from a foreign government 

The University must notify the Minister of Foreign Affairs that it: 

1. proposes to enter and 
2. it has entered into an arrangement with a foreign entity.

This means that the University must generally make 2 notifications: 

1. when an arrangement is certain but before it has been finalised (e.g., terms are being agreed/agreement has been drafted); and
2. once the arrangement has been finalised (e.g., an agreement has been signed by the parties). An arrangement that has been finalised must be notified within 14 days.

University-to-university arrangements are NOT in scope unless they are between an Australian public university and: 

• A foreign tertiary education institution that is part of a foreign government; or 
• A foreign university that does not have institutional autonomy because a foreign government is in a position to exercise substantial control over the university.  

It is anticipated that the majority of UOW relationships are with Universities who have autonomy from their government and will not be notifiable. 

A foreign university does not have institutional autonomy if a foreign government is in a position to exercise substantial control over the university.   

Under the Act, a foreign government will be considered to be in a position to exercise substantial control over a university if, and only if, one or more of the following indicators are satisfied: 

• (a) 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; OR 
• (b) 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; OR 
• (c) 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 political doctrines referred to in (b) above, in their teaching, research, discussions, publications or public commentary. 

The circumstances described in (a), (b) and (c) above must be required by a law or the university’s governing documents for the foreign university to be considered to not have institutional autonomy.  

The three indicators are set out in the legislation to make the process of considering whether a foreign university has institutional autonomy as simple as possible.  Similarly, the need for the indicators to be required by a law or the university’s governing documents ensures that State and Territory entities do not need to consider whether the foreign university has institutional autonomy in practice.  

The vast majority of foreign universities will not meet any of these indicators. Universities with similar levels of institutional autonomy to Australian universities do not meet these indicators. 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 Scheme. Accordingly, arrangements with these universities do not need to be notified. 

All assessments of institutional autonomy will be conducted by the Global Strategy Division. Staff are asked to contact the Global Strategy team at the time of proposing to enter into an arrangement with the following information:

1. Arrangement title/purpose
2. Arrangement type - Research Collaboration Agreement, MOU, External Grant, CTA etc.
3. Entities/institutions involved - list all - both Foreign and Australian if any
4. Country/ies
5. Copy of draft arrangement if available

The Global Strategy Division (GSD) is authorised to make notifications on behalf of the University. You must contact GSD about any arrangements made with foreign entities so that the notification process can be carried out in accordance with procedure outlined in The Scheme. 

New or changed policy, procedure, processes and resources will be rolled out to in 2021 to bring UOW in-line with DFAT’s Foreign Arrangements legislation.

Once lodged, an arrangement will be listed on the public register. The public register will include information about foreign arrangements, including whether a decision has been made by the Minister in relation to the arrangement. Sensitive material may not need to be included on the Public Register.   

The Act also authorises the Minister for Foreign Affairs to determine whether an arrangement is compatible with Australia’s foreign relations and policy. The Minister may declare an arrangement to be invalid and unenforceable or that it must be altered or terminated. If such a declaration is made, the Minister will write to the University.  

Prospective Arrangements:

From 10 March 2021, UOW must make two notifications for prospective non-core FAs. The first notification is to be made at the time of proposing to enter the arrangement. There is no requirement to wait for DFAT’s approval/response to progress any non-core arrangement. The draft arrangement must be uploaded with the first notification.

The second notification is made once the arrangement is executed. The second notification must be made within 14 days of the date of execution (fully signed). A copy of the final executed arrangement must be uploaded with the second notification.

DFAT have emphasised, via their fact sheets that the Scheme operates separately to other schemes with obligations related to foreign dealings including:  

• Foreign Investment Review Board:  scheme applies to foreign persons and foreign government investors and regulates significant and notifiable actions. 
• University Foreign Interference Taskforce: apply to Australian public universities and the scope includes areas such as governance and risk, knowledge sharing and cyber security. 
• Foreign Influence Transparency Scheme: applies to Australian or foreign individuals and entities who undertake registrable activities on behalf of a foreign principal. 
• Defence Export Control: applies to anyone exporting regulated defence goods/technologies from Australia or transferring information from Australia, and,  
• Sanctions: aims to bring an end to situations of international concern by influencing those responsible. 

DFAT state that while there may, at times, be some intersection between these schemes they each serve a different purpose and have a different policy intent to the Foreign Arrangements Scheme. See fact sheet 6 below for further information about comparative schemes.  

Informal Research Activities

Many staff liaise informally with researchers all over the world regarding their research activities. Generally speaking, informal research is out of scope of the FA scheme. The activity will be in scope of the scheme only if there exists an arrangement in writing, committing the university to an activity/ies with a foreign government (or agency) or a foreign university that lacks autonomy. If unsure, please seek advice from the Global strategy team by emailing gsd-enquiries@uow.edu.au

Academics acting in an individual capacity - for example, academics receiving direct funding from foreign universities and foreign governments.

The Scheme only applies to Australian public universities when they enter arrangements with foreign governments or certain foreign universities, not individuals acting in their own right. Whether an arrangement is entered by the university or an individual is a question of fact. Arrangements that relate to funding for academics could be covered in certain circumstances. For example, where an academic enters a foreign arrangement while acting on behalf of their Australian public university. Where an academic enters an arrangement in their individual capacity under the auspices of a head foreign arrangement, that arrangement may also be considered a ‘subsidiary arrangement’ under the Scheme.

Commercial Corporations
The Scheme is not intended to regulate arrangements with purely commercial corporations. To reflect this intention, corporations that operate on a commercial basis are excluded from the definition of ‘State/Territory entity’ and ‘foreign entity’. However, corporations that do not operate on a commercial basis are within the scope of the Scheme where they fall within the definition of ‘State/Territory entity’ or ‘foreign entity’.

Grants

Case Study 1

Researchers at an Australian public university are drafting an Australian Research Council grant application to undertake a study on the economic impact of migratory bird colonies for eco-tourism. The grant application proposes that researchers work collaboratively with colleagues at a foreign university that requires that academic staff adhere to political principles in their research. The application has not progressed through the university’s internal grants clearance process. The Australian public university does not need to notify the Minister at this stage.

Case Study 2

Researchers at an Australian public university submitted a grant application to undertake a joint study with a foreign government on regulating the import of second-hand utility vehicles. The researchers had identified contacts in the foreign government to help undertake the study. The application is rejected. The Australian public university does not need to notify the Minister at this stage.

Case Study 3

Researchers at an Australian public university have submitted a grant application to undertake a longitudinal study on the effect of early childhood education in reducing gender-based violence. The researchers have identified contacts in the education department of a foreign government to help undertake the study. The grant outcome has been issued to the university under embargo. The Australian public university does not need to notify the Minister until they propose to accept the grant and enter into a grant agreement.

Case Study 4

Researchers at an Australian public university were successful in a grant application to undertake a collaborative study on the effects of mass-surveillance on confidence in policing services and rates of violent crime. As part of the grant application, the researchers have sought to partner with a university that, by law, requires academic staff to be members of the political party that forms the foreign government. The grant application has been successful, and the researchers are finalising an agreement on research outputs and resourcing. The Australian public university is required to notify the Minister at this stage.

Find out more

• DFAT Foreign Arrangements Scheme homepage  
• Guidance Institutional Autonomy  
• DFAT Foreign Arrangements FAQs

Fact sheets  

• Foreign Arrangements Factsheets