In brief - Educational institutions and employers alike should be clear about the limitations of their disciplinary jurisdiction, particularly regarding alleged conduct which may be criminal in nature. The decision of University of Queensland & Anor v Y [2020] QCA 216 provides some useful guidance. 

Universities have an obligation to protect their students and staff

The Australian Human Rights Commission's Change the Course report on sexual assault and sexual harassment at Australian universities demonstrated the risk of assault for students is alarmingly high. Failure by universities to address such issues was found to possibly exacerbate the vulnerability of sexual assault survivors.

Submissions to the Change the Course report identified that students' lack of confidence in the universities to take effective action in response to allegations of assault is a key barrier to reporting assault. Data demonstrates that 87 per cent of sexual assault victims never made a formal report. 

The findings of this report are not so different to the findings made in other workplace harassment reports, including the Respect@Work Report and the Set the Standard Report

In response to the Change the Course report, universities and other employers are understandably looking to be more responsive to reports of assault. Part of that response is the enforcement of Codes of Conduct and sexual misconduct policies. 

But how should this be done where the allegation might be criminal in nature and a university, board or even an employer's HR department are not a criminal court? 

The decision of University of Queensland & Anor v Y provides useful guidance. 

Lessons from University of Queensland & Anor v Y 

The case related to a decision about a final year student who alleged she had been sexually assaulted by a classmate. The serious claims were substantiated by the University's Board and disciplinary action (including exclusion) was taken. 

The accused student sought a review of that decision. The trial judge took a 'police matter' approach, granting the student's application for an injunction on the grounds that the Board was not a criminal court and had no capacity to make such a finding. 

On appeal it was held that while the Board was not able to make criminal findings, they could determine whether the terms of their own policies had been breached and to take disciplinary action in response. 

This case provides useful guidance to schools, universities and employers more generally where they are called on to decide upon conduct which might be criminal in nature, as well as a breach of Codes of Conduct or other policies. 

By defining issues as allegations as a Code or Policy breach, a different standard of proof is required and decision-making power can be exercised appropriately. 

Navigating investigations to minimise legal risk

To minimise the risk of Code or Policy decisions being reviewed as being inappropriate or beyond power, employers and universities alike must reach decisions based on good information and the appropriate balancing of evidence. A formal fact finding process is a useful first step. 

Decision-makers should put procedural safeguards in place to ensure natural justice and procedural fairness. These steps may include delivering fair and timely notification of any accusations to the respondents, ensuring that allegations are couched in civil rather than criminal terms (eg "breach of the Code of Conduct" rather than "engaged in assault"). 

Written particulars of allegations should be provided and respondents should be given an opportunity to respond, to seek advice and to understand possible consequences. 

Decision-makers should also:

  • Be careful to avoid any perception of bias. Decisions should be made and communicated in writing. 

  • Provide support to complainants to ensure that they are not prejudiced through the process. 

  • Give directions to both the complainant and the respondent around not engaging in victimisation or retaliatory action, and to avoid commenting on the matter (particularly on social media). 

  • Approach allegations of a serious and possibly criminal nature with care and caution. Failure to apply the correct process could lead to a review of the decision, or access to any of the remedies under section 30 of the Judicial Review Act 1991 (Qld).

First and foremost, we recommend that you seek guidance when such allegations are made so as to understand your duty to report matters outside of your organisation and to seek support around the next best steps. 

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2022.

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