Australian universities: transnational education arrangements and liability in partnership law

Transnational higher education is a major global phenomenon and the Australian higher education sector has taken up the challenge in securing their place in the global higher education system.1 The policies of the Commonwealth government and the governance of many universities have certainly combined to enliven the ‘spirit of enterprise’ to extend the commercial arm of Australian universities to include significant transnational education arrangements with overseas providers. There has been a systematic increase in international students attracted to studying at Australian universities, which has involved a systematic increase in revenue. Many universities have established transnational educational ventures in various commercial forms, including joint ventures, agency and franchise arrangements. The various offshore ventures involving Australian universities have raised some pressing legal and non-legal issues that require examination. This article examines the legal relationship between Australian universities and partner offshore institutions in providing education services in collaborative transnational arrangements and investigates complex technical questions regarding whether these arrangements could give rise to legal liability in partnership. The main conclusion is that, in appropriate circumstances, it would be open to a court to find that a transnational arrangement between an Australian university and an offshore higher education institution is an arrangement between ‘persons’ who are carrying on a business in common with a view of profit and satisfy the legal status of partnership. The significance of a transnational education arrangement being a partnership is that an Australian university may find itself with unlimited liability for the business of the arrangement.