Universities must act to prevent espionage and foreign interference, but national laws still threaten academic freedom
This week, the Joint Parliamentary Committee on Intelligence and Security released its long-awaited report 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 deprive adversaries of the opportunity to engage in national security risks in the sector.”
The committee’s recommendations, when properly implemented, will go a long way in combating the threat of espionage and foreign interference. But they are not enough to protect academic freedom.
It is because the laws that make espionage and foreign interference a crime could capture legitimate research efforts.
National Security Risks for Higher Education and Research
The joint committee found several national security threats weigh on the higher education and research sector. The most significant are foreign interference against students and staff, spying and data theft.
This includes theft through talent recruitment programs where Australian academics working on sensitive technologies are recruited to work at overseas institutions.
These threats have occurred through cyberattacks and human means, including actors working covertly in Australia on behalf of a foreign government.
Foreign opponents can target research information that can be traded or used for national gain.
The type of targeted information is not limited to military or defense but includes technologies or valuable information in all fields such as agriculture, medicine, energy and manufacturing.
What did the committee recommend?
The committee declared that “awareness, recognition and real proactive measures” are the next steps that academic institutions must take to mitigate the corrosive effects of these national security risks.
Of its 27 recommendations, the committee made four “flagship” recommendations. These include:
- An active university-wide transparency campaign on national security risks (monitored by the University Task Force on Foreign Interference)
- membership in the task force university guidelines. These include having frameworks to manage national security risks and implementing a cybersecurity strategy
- introduce training on national security issues for staff and students
- advice to universities on how to implement sanctions for foreign interference activities on campus.
Long-awaited new Parliamentary Report (PJCIS) on foreign interference in Australian universities. It makes strong recommendations to the united states and government on ways to counter state-sponsored harassment and intimidation and protect students and staff. https://t.co/7I8mI52gb9 pic.twitter.com/uTlMWzDCkv
— Elaine Pearson (@PearsonElaine) March 29, 2022
Other recommendations include creating a mechanism for students to anonymously report instances of foreign interference on campus and diversifying the international student population.
What about academic freedom?
Spying makes it an offense to process information on behalf of or to provide it to a foreign principal (such as a foreign government or a person acting on its behalf). The person may also intend to harm Australia’s national security or harm Australia’s national security.
In the context of espionage and foreign interference offences,national securitystands for Defense of Australia.
It also signifies Australia’s international relations with other countries. “Prejudicemeans something more than mere embarrassment.
Thus, an academic might intend to harm Australia’s national security when engaging in a research project that results in criticism of Australian military or intelligence policies or practices; or catalog the misconduct of the Australian government in its dealings with other countries.
The academic may even have committed an offense by teaching this research to students in class (because Australia has a large proportion of international studentssome of which may act on behalf of foreign actors), communicate with colleagues working abroad (because foreign public universities could be “foreign principals“), or simply engage in preliminary research (because it is an offense to do things for prepare for espionage).
Foreign interference makes it a crime to engage in secret or deceptive conduct on behalf of a foreign principal when the person intends (or does not care whether they will) to influence a political or governmental process, or prejudice the national security of Australia.
The secret or deceptive nature of the conduct could be related to any part of the conduct of the person.
Thus, 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 when directing a research project that involves anonymous responses to a survey to collect information to advocate for Australian electoral law reform.
The anonymous nature of the investigation may be sufficient for the academic’s conduct to be “secret”.
‘Cause it’s a crime prepare for foreign interferencethe scholar may also have committed an offense simply by taking any step towards the publication of the research results (including preliminary research or writing a first draft).
The type of research criminalized by the offenses of espionage and foreign interference can constitute important research in the public interest. It can also produce knowledge and ideas necessary for the exchange of information that underpins our liberal democracy.
Criminalizing this conduct risks undermining academic freedom and eroding fundamental democratic principles.
So how do we protect academic freedom?
In addition to implementing the report’s recommendations, we must reform our national security crimes to protect academic freedom in Australia. While the committee recognized the relevance of these crimes to mitigating national security threats to the research sector, it failed to consider the overbreadth of these laws.
Legitimate research efforts could be better protected if a “national interest” defense against a charge of espionage or foreign interference were introduced. This would be akin to “public interest” defenses and would protect conduct in the national interest.
“National interest” must be flexible enough that various liberal democratic values – including academic freedom, freedom of the press, government accountability and the protection of human rights – can be considered alongside security national.
In the absence of a federal bill of rights, such a defense would go a long way to ensuring the protection of legitimate research and respect for academic freedom in Australia.