In early November 2020, the Parliamentary Joint Committee on Intelligence and Security (PJCIS) launched its inquiry into the national security risks affecting the Australian higher education and research sector (Foreign Interference Inquiry). This inquiry followed a referral by the Hon Peter Dutton MP, Minister for Home Affairs, in September 2020.

What is covered by the inquiry?

The terms of reference record that the PJCIS will inquire into, and report on, national security risks affecting all institutions within the Australian higher education and research sector. This includes institutions engaged in: tertiary teaching; research; commercialisation of research originating in the sector; grants and funding decisions in relation to those activities; tertiary education-related representative bodies, coordination bodies or institutional groupings; and regulation of those activities.

In particular, the PJCIS has been directed to seek information on:

• the prevalence, characteristics and significance of foreign interference, undisclosed foreign influence, data theft and espionage and associated risks to national security;
• the higher education and research sector's awareness of foreign interference, undisclosed foreign influence, data theft and espionage, and its capacity to identify and respond to such threats to national security;
• the adequacy and effectiveness of the Australian Government's policies and programs in identifying and responding to foreign interference, undisclosed foreign influence, data theft and espionage in the higher education and research sector;
• responses to the above issues internationally, and the relevance of those responses to the Australian context; and
• any other related matter.

What can universities choose to do?

The PJCIS has invited submissions to the Foreign Interference Inquiry until 4:00pm on Friday, 18 December 2020. It is a matter for universities and other institutions covered by the inquiry as to whether they choose to respond to this invitation.

What evidence can universities be required to give or produce?

While universities and other institutions may decide not to make a submission, the PJCIS has broad powers to compel the giving of evidence. We expect that some universities and other institutions will be required to produce evidence to the committee, most likely in early 2021.

Pursuant to the Intelligence Services Act 2001 (Cth), the Chair of the PJCIS (or another authorised member) has the power to require a person (including a university or other institution) to appear before the committee and/or produce documents where there are reasonable grounds for believing the person has evidence relevant to the inquiry.

A university or other institution that is required to appear to give evidence or produce documents will be provided with a written notice (Notice to Appear/Produce) specifying:

• the date, time and place at which they are required to appear or to produce documents; and
• the nature of the evidence or documents to be provided and, in the case of documents, the form in which documents are to be provided.

The Notice to Appear/Produce will be issued at least five days prior to the date on which the university or other institution is required to appear or produce documents. Any university or other institution that fails to comply with the notice will have committed an offence, subject to very limited exceptions.

There are protections in place to avoid interference with evidence that might be given to the inquiry. In particular, it is an offence to influence or threaten a person with the intention that they not attend before the committee, or that they withhold or give false evidence.

What evidence will be published?

The PJCIS has the power to publish any evidence taken, or the contents of any documents produced, during the course of the inquiry. This is unless the evidence or documents are provided during a part of the inquiry that is conducted in private, or another exception under the Intelligence Services Act 2001 (Cth) applies.

Given the publicity surrounding the Foreign Interference Inquiry, it is likely that a substantial part of the inquiry will be held publicly. As a result, we believe that much of the evidence and documents provided to the PJCIS will be published. This was also indicated in the initial referral, by Minister Dutton, where he stated that the inquiry should, as far as possible, be conducted in public.

There are certain circumstances in which a committee such as the PJCIS cannot, or may decide not to, publish particular evidence taken. If a university or other institution wishes to avoid certain evidence being published, it is advisable to seek urgent advice on the options available prior to evidence being provided to the committee.

How can universities prepare?

It is for universities and other institutions to determine whether they wish to make submissions to the PJCIS. The decision to do so may be influenced by whether the institution has previously come under public scrutiny in relation to these matters.

The extent to which the PJCIS decides to collect evidence through Notices to Appear/Produce is currently uncertain. Given that submissions can be made until 18 December 2020, we expect that any notices will not be issued until early 2021. However, they could be issued earlier.

It is advisable for universities and other institutions covered by the terms of the inquiry, in particular those that expect to receive a notice, be in a position to demonstrate the following:

• consideration of the extent to which the institution is impacted by the matters the subject of the Foreign Interference Inquiry;
• documentation of those findings, and any actions that have been and/or should be taken in response to those findings; and
• reporting of those matters to the institution's governing body, and the subcommittee responsible for risk, audit and compliance, seeking endorsement and/or approval as required for the institution's response to the findings.

For some universities and other institutions, these matters may already be monitored or recorded on a regular basis as part of business as usual activities. For others, it may be necessary to take immediate steps to ensure there is appropriate consideration prior to the receipt of a notice from the PJCIS. If you would like further information or advice on this matter, please reach out to your client relationship partner or a member of our national higher education team.