Thu Mar 31

Universities must act to prevent espionage and foreign interference, but our national laws still threaten academic freedom

Written by Sarah Kendall, PhD Candidate in Law, The University of Queensland

This week, the Parliamentary Joint Committee on Intelligence and Security released its much anticipated report ^[1] on national security threats affecting the higher education and research sector.

The 171-page report found the sector is a target for foreign powers using “the full set of tools” against Australia, which can undermine our sovereignty and threaten academic freedom. It made 27 recommendations to “harden the operating environment to deny adversaries the ability to engage in the national security risks in the sector”.

The committee’s recommendations, when correctly implemented, will go a long way towards combating the threat of espionage and foreign interference. But they are not enough to protect academic freedom. This is because the laws ^[2] that make espionage and foreign interference a crime could capture legitimate research endeavours.

National security risks to higher education and research

The joint committee found ^[3] there are several national security threats to the higher education and research sector. Most significant are foreign interference ^[4] against students and staff, espionage ^[5] and data theft. This includes theft via talent recruitment programs where Australian academics working on sensitive technologies are recruited to work at foreign institutions.

These threats have been occurring through cyber attacks and human means, including actors working in Australia covertly on behalf of a foreign government.

Foreign adversaries may target information on research ^[7] that can be commercialised or used for national gain purposes. The kind of information targeted is not limited to military or defence, but includes valuable technologies or information in any domain such as as agriculture, medicine, energy and manufacturing.

What did the committee recommend?

The committee stated ^[8] that “awareness, acknowledgement and genuine proactive measures” are the next steps academic institutions must take to degrade the corrosive effects of these national security risks.

Of its 27 recommendations, the committee made four “headline” recommendations. These include:

A university-wide campaign of active transparency about the national security risks (overseen by the University Foreign Interference Taskforce ^[9])
adherence to the taskforce ^[10] guidelines by universities. These include having frameworks for managing national security risks and implementing a cybersecurity strategy
introducing training on national security issues for staff and students
guidance for universities on how to implement penalties for foreign interference activities on campus.

Other recommendations include creation of a mechanism to allow students to anonymously report instances of foreign interference on campus and diversification of the international student population.

What about academic freedom?

Espionage ^[11] makes it a crime to deal with information on behalf of, or to communicate to, a foreign principal (such as a foreign government or a person acting on their behalf). The person may also need to intend to prejudice, or be reckless in prejudicing, Australia’s national security.

In the context of the espionage and foreign interference offences, “national security ^[12]” means defence of Australia. It also means Australia’s international relations with other countries. “Prejudice ^[13]” means something more than mere embarrassment.

So, an academic might intend to prejudice Australia’s national security where they engage in a research project that results in criticism of Australian military or intelligence policies or practices; or catalogues Australian government misconduct in its dealings with other countries. Because “foreign principals ^[14]” are part of the larger global audience, publication ^[15] of these research results could be an espionage offence.

The academic may even have committed an offence when teaching students about this research in class (because Australia has a large proportion of international students ^[17], some of whom may be acting on behalf of foreign actors), communicating with colleagues working overseas (because foreign public universities could be “foreign principals ^[18]”), or simply engaging in preliminary research (because it is an offence to do things to prepare for espionage ^[19]).

Even communicating about research with overseas colleagues could fall foul of espionage and foreign interference laws. Shutterstock ^[20]

Foreign interference ^[21] makes it a crime to engage in covert or deceptive conduct on behalf of a foreign principal where the person intends to (or is reckless as to whether they will) influence a political or governmental process, or prejudice Australia’s national security. The covert or deceptive nature of the conduct could be in relation to any part of the person’s conduct.

So, an academic working for a foreign public university (a “foreign principal”, even if the country is one of our allies) may inadvertently commit the crime of foreign interference where they run a research project that involves anonymous survey responses to collect information to advocate for Australian electoral law reform. The anonymous nature of the survey may be sufficient for the academic’s conduct to be “covert”.

Because it is a crime to prepare for foreign interference ^[22], the academic may also have committed an offence by simply taking any steps towards publication of the research results (including preliminary research or writing a first draft).

The kind of research criminalised by the espionage and foreign interference offences may be important public interest research. It may also produce knowledge and ideas that are necessary for the exchange of information which underpins our liberal democracy. Criminalising this conduct risks undermining academic freedom and eroding core democratic principles.

So, how can we protect academic freedom?

In addition to implementing the recommendations in the report, we must reform our national security crimes to protect academic freedom in Australia. While the committee acknowledged the adequacy of these crimes to mitigate the national security threats against the research sector, it did not consider the overreach of these laws.

Legitimate research endeavours could be better protected if a “national interest” defence to a charge of espionage or foreign interference were introduced. This would be similar to “public interest” defences and protect conduct done in the national interest. “National interest” should be flexible enough so various liberal democratic values – including academic freedom, press freedom, government accountability, and protection of human rights – can be considered alongside national security.

In the absence of a federal bill of rights, such a defence would go a long way towards ensuring legitimate research is protected and academic freedom in Australia is upheld.