Government's plan for a veto over university agreements is a step too far

Written by Michelle Grattan, Professorial Fellow, University of Canberra

Scott Morrison and Dan Andrews don’t have a lot in common – but they are both as bold as brass when it comes to grabbing for power. As we saw this week.

Morrison announced a plan to obtain the right of veto over all agreements with foreign governments – read, the Chinese government – concluded or proposed by Australia’s state, territory and local governments and public universities.

For his part, Andrews made a bid for Victoria’s sweeping state-of-emergency legislation to be extended for another year after it expires in mid-September.

The prime minister can be confident of winning Senate support for his plan. Anthony Albanese doesn’t want a fight over anything involving national security. But Andrews quickly received enough signals from the Victorian upper house to begin a retreat to a less ambitious position.

Morrison works around gaps in his formal power to acquire more, as well as using to the maximum what power the system provides him.

Thus his creation of the national cabinet was designed to put him into the strongest possible position during the pandemic, when the states actually hold most of the formal constitutional power.

He subsequently made that body permanent, replacing the Council of Australian Governments. He likely thought this would augment future federal clout, although watching how the premiers are now behaving, that seems optimistic.

At a news conference on Thursday Morrison showed no inclination to try to legislate to override the resistance by various states to his push for internal borders to be as open as possible. He referred to this as a constitutionally grey area. Given how frustrated he is, probably all that’s held him back is lack of federal power and the fact border restrictions are so politically popular.

But neither the constitution nor public sentiment is a check on his push to be the cop on the beat monitoring state and other public entities’ agreements with foreign governments. External affairs is a clear area of federal responsibility. And Australians have become increasingly critical of China.

Under the Morrison plan, all existing agreements would have to be registered with the federal government; they would be scrutinised and the foreign minister would strike down any considered against the national interest.

The government has put forward two questions as the test for agreements, whether now in force or prospective. Does the arrangement adversely affect Australia’s foreign relations? Is the arrangement inconsistent with Australian foreign policy?

In particular, Victoria’s sign-up to China’s Belt and Road Initiative is in Morrison’s sights. He won’t publicly confirm this but his views about it are fully on the record.

The federal government – already angry with Andrews over the unrelated issue of Victoria’s second COVID wave – will have no hesitation in making the state’s agreement an early casualty of the new veto.

Andrews was visibly provoked by the announcement, saying Morrison would “no doubt very soon be able to list the full range of other free trade agreements and other markets that we’ll be sending Victorian products to. I look forward to that.”

Is the Morrison legislation warranted?

When it comes to arrangements the states have, there is a strong case. State and territory policies should be aligned with federal policy on matters of foreign relations and national security.

This is especially so as China has become much more assertive in targeting the internal affairs of other countries. Just as Australia is increasingly wary about Chinese investment in the nation’s critical infrastructure, so it can justifiably be more cautious about state governments’ arrangements with China.

Probably the same goes for agreements local governments make, although they are likely less important.

Universities, however, are another matter, or should be. That is despite the fact their agreements can be both important and potentially compromising for the national interest.

According to government sources, research agreements overwhelmingly would not be affected, because these are usually with other universities. Confucius Institutes, however, would fall under the legislation’s provisions.

Universities have done themselves and Australia no good by, in many cases, becoming too dependent on foreign, especially Chinese, students. The pandemic has meant they are now paying the price – literally, with big losses of revenue. Similarly, they can be too easily seduced into arrangements that pose risks for their independence.

But while that might seem to back the government’s case for the final say on agreements, the counter argument – academic independence – carries more weight.

The government should advise and warn, and have regular consultations about these matters, a process that has already begun. But it goes a step too far in seizing this proposed power to dictate to these institutions.

The Group of Eight, which represents the leading research-intensive universities, on Thursday expressed concern “at the danger that – in the name of security – Australia may be inadvertently threatening the very democratic principles it holds dear”.

The Go8 said the legislation “as it relates to universities may not be proportionate to risk, may lead to over-regulation and could undermine the good work that has been undertaken between universities and the government” on the issue of countering foreign interference in the sector.

In the circumstances in which we’re living, almost nothing governments do seems surprising.

But Andrews’ plan for a 12-month extension of the emergency legislation did cause some sharp intakes of breath.

The extraordinary measures in force in Victoria are necessary to deal with this once-in-a-century health crisis (though there can be argument about the detail and the lack of flexibility).

A Roy Morgan Snap SMS survey asking about six of Victoria’s current restrictions found strong support for five (there was division over whether Melburnians should be able to visit immediate family – 43% said yes, 57% said no).

While it is good people are co-operating with measures to fight the virus, these suspend what are usually regarded as fundamental liberties. Hopefully the extreme restrictions will go soon, but Victoria’s course over coming months remains problematic, making it crucial to have constant parliamentary scrutiny of what’s being done, how power is being exercised.

Extending the legislation for six months would be the longest time that would be reasonable; three months would be much preferable.

In a crisis leaders are impatient of scrutiny; indeed they use the situation to deflect attempts to hold them to account. Andrews has done this whenever he can (often hiding behind his inquiry into the hotel quarantine breach).

Federally, having parliament sitting this week was useful for putting heat on the federal government over the disaster in aged care.

Accountability must not become a second-order priority in this pandemic.

Authors: Michelle Grattan, Professorial Fellow, University of Canberra