Foreign Arrangements Scheme

The Foreign Arrangements Scheme establishes a formal notification process that applies to all Australian public universities. The Scheme is established by the Australia’s Foreign Relations (State and Territory Arrangements) Act 2020 (Cth) (the Act). Public universities are included in the definition of “State/Territory entities” along with all Australian State, Territory and local governments.

The Foreign Arrangements Scheme legislative summary diagram provides an overview of the operation of the Scheme.

Any foreign arrangements in operation or established from 10 December 2020 must be notified under the Scheme.

Global Engagement and ICS through Research Services are authorised to lodge and maintain records of notifications made on behalf of the University.

The purpose of the Act is to protect and manage Australia’s foreign relations. The FAS is the statutory notification and assessment process managed by the Department of Foreign Affairs and Trade (DFAT) to support compliance with the Act.

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. It may include MOUs or formal proposals set out in emails. Types of arrangements include:

• Research collaboration between 2 universities
• Establishing student exchange or mobility programs
• Collaboration between academics on a workshop or conference presentation
• Arranging cultural activities  

Any subsidiary arrangements that are entered into as a consequence of, or for the purpose of implementing, the “head” foreign arrangement must be included in the notification.

A due diligence assessment will help determine whether an arrangement is caught by the Scheme by determining whether it involves a foreign entity.

A foreign entity is defined by the Act to include foreign governments (at all levels), their agencies and related public institutions. This would include universities that do not have institutional autonomy because it is subject to substantial control by a foreign government. Indicators of substantial government control of a university may be evident in the laws of the foreign country; the institution’s governance arrangements; laws or rules that require academics to conform to specific political ideas in their teaching and research. Some helpful due diligence resources are available on the About your foreign partner webpage.

A detailed table setting out the legislative criteria for foreign entities is provided in page 2 of the FAS due diligence explainer.

The University must notify the Minister for Foreign Affairs that it: 1. proposes to enter and 2. has entered into an arrangement with a foreign entity. This means that the University must generally make two notifications: 1. When an arrangement is certain but before it has been finalised (e.g., terms are being agreed); 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.

An arrangement between the University and a foreign entity is defined under the Scheme as a “non-core” foreign arrangement. This is different from a “core” foreign arrangement, which involves an Australian government entity and a foreign entity. It is possible that the University could be involved in a “core” foreign arrangement if, for example, the SA Government is a party. You should seek further advice from the Legal Services Branch about the obligations that may apply to core foreign arrangements.

Australian entities involved in multi-party arrangements can agree on which entity will make the notification (usually the lead entity). The University has decided to notify all foreign arrangements to which it is a party, including multi-party agreements, even if it is possible that another party will also notify.

Global Engagement and ICS through Research Services are authorised to make notifications on behalf of the University. Refer to “What do I need to do?” for more information about the University’s procedures for reviewing and notifying arrangements involving foreign partners.

Once notified by the University, an arrangement will be formally reviewed by the Department of Foreign Affairs and Trade and then listed on a 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
• declare an arrangement to be invalid and unenforceable or that it must be altered or terminated
• write to the University advising that a declaration has been made
• seek a court injunction to stop the arrangement if an entity fails to notify an arrangement or disregards a formal notice. A Ministerial declaration would mean that the purpose of the arrangement cannot be given effect or held by the parties to be in effect. If the University receives such a declaration, it must take steps to notify the parties involved and cease all activities.

Given the possibility that an arrangement may be disallowed, special contract clauses should be included in relevant agreements. Standard form contracts have been amended to include relevant clauses. Should a negative declaration be made, the consequences for any subsidiary (secondary) arrangements made under the auspices of the foreign arrangement will need to be considered. An arrangement is subsidiary to a foreign arrangement if it is not itself a foreign arrangement, but it has been anticipated by or supports the implementation of the 'head' foreign arrangement.

The purpose of the Scheme is to ensure that certain arrangements with foreign entities do not adversely affect Australia's foreign relations and are not inconsistent with Australia's foreign policy.

Where an assessment indicates the contrary, the Minister for Foreign Affairs may declare an arrangement to be invalid, unenforceable or require it to be alerted or terminated (depending on the nature of the arrangement). A declaration may also be applied to subsidiary arrangements.

The Minister must consider significant consequences of a declaration where it has the potential to adversely affect the functioning of an Australian State or Territory. It is not sufficient that there are consequences for the University alone. Usually this would mean consequences for South Australia, but the University might be involved in an arrangement with another Australian jurisdiction.

Under section 51(2) of the Act, consideration must be given by the Minister if a declaration would:

• Impede activity intended to assist or enhance the functioning of the State or Territory
• Impair the continued existence of the State or Territory as an independent entity
• Significantly curtail or interfere with the capacity of the State or Territory to function as a government
• Have significant financial consequences for the State or Territory
• Impede the acquisition of goods or services by the State or Territory, including, for example, for the purposes of infrastructure
• Have an effect on the capacity of the State or Territory to complete an existing project that is to be delivered under the arrangement (either at all, or within the intended timeframe)

In circumstances where a declaration would have such significant consequences for the State, a written submission should be prepared, noting however, that it may not be taken into account unless that submission has been endorsed by the State. The Minister is only required to take into account information provided by the relevant State or Territory.

Before proceeding, all arrangements involving a foreign entity must be submitted for a compliance review using the Foreign Engagement Compliance Review and will require endorsement (and relevant approvals) before the arrangement may proceed. Make sure that you are familiar with the regulatory obligations by applying  the ‘C, D, E, F' process for foreign compliance. There may be additional details you will need to ask your foreign partner to provide so that a compliance assessment can be completed.

• Compliance: know the regimes 
• Due diligence: know your partner, activity & risks 
• Endorsement: the Foreign Engagement Compliance Review 
• Fruition: bring to Fruition, with a formal agreement if needed 

Refer to the Global Engagement Foreign Compliance website for full details of this step by step compliance process.  

Foreign engagement activities that are supported by central units at the University (Research Services and Global Engagement) will routinely be assessed for compliance. Any compliance concerns can be directed to contacts in these business areas.

A final assessment and the formal notification via the DFAT portal is managed by Global Engagement and ICS through Research Services as applicable, and notification details recorded. Each notification is issued with a unique ID number.

Once lodged, each foreign arrangement will be issued a unique foreign arrangement number. Global Engagement or ICS through Research Services (as applicable) will notify you of this number for your records.

Each arrangement is reviewed by DFAT, and, once completed, the arrangement will appear on the online public register. Basic information (title and parties involved, and commencement date) will be publicly visible. If the Minister makes a declaration, that decision will also be visible. 

Any significant variations to an arrangement must be notified using the same process. This includes providing a notification that an arrangement has been extended or renewed.

For further advice and assistance with FAS, please visit the Foreign Compliance website.