Help on the way for survivors of campus sexual violence

Legislation establishing a new National Student Ombudsman — a single, streamlined complaints mechanism — promises to be transformative.

After briefly dating a fellow student, Jodie (not her real name) was stalked and harassed at her on-campus college.

She complained to her university’s investigation unit after the male student watched her shower and climbed onto her balcony to watch her sleep.

A second student complained to the same unit after the same male student allegedly sexually assaulted her on the rooftop of a campus building.

During the university’s investigations, both complainants were asked invasive questions about what they had been wearing and whether they had been drinking alcohol.

Dissatisfied with the university’s procedures, the slow pace of their investigations and the outcomes of the process — in Jodie’s case a letter of apology from the male student to the registrar, and in both cases a requirement that the alleged perpetrator stay a “reasonable” but undefined distance away — both students complained to Australia’s national higher education regulator, Tertiary Education Quality and Standards Agency (TEQSA).

Jodie also complained the alleged perpetrator had been hired by the university as a tutor despite a magistrates’ court issuing a temporary protection order against him on her behalf, which was later upgraded to a five-year domestic violence order.

TEQSA’s investigation of the two complaints was also slow. In October 2020 — more than 17 months after receiving the first complaint — TEQSA determined that the university had fully complied with its policies in both cases, but found “room for improvement”.

Despite several similar complaints to TEQSA in recent years, the university has faced no regulatory repercussions.

Addressing failures

Commonwealth Education Minister Jason Clare has now taken a major step towards addressing the failures these two students and many others have experienced in seeking support following incidents of sexual violence and harassment in university settings.

The Universities Accord (National Student Ombudsman) Bill 2024, which Clare introduced into parliament on September 11, provides for the establishment of a National Student Ombudsman, or NSO.

The bill is expected to pass later this year with multipartisan backing and to come into effect in February next year.

Once in place, the Ombudsman function will be able “to consider and address a broad range of complaints made by students” within Australia’s higher education system, including around a provider’s handling of a sexual violence incident.

The bill empowers the NSO to consider “whether decisions and actions taken by providers are unreasonable, unjust, oppressive, discriminatory or otherwise wrong”.

It is the first of several major reforms aimed at addressing the long-standing issue of gender-based violence in higher education. To date, institutional responses have been fragmented and inconsistent, external complaints pathways confusing, and regulatory oversight weak.

Following the establishment of the NSO, a new national code will be enacted to provide vital guidance, setting “standards that higher education providers must meet to make our students and staff safer”, as the minister described when announcing the legislation.

The reforms have been a long time in the making.

In February this year, Australia’s commonwealth, state and territory education ministers endorsed a national Action Plan Addressing Gender-based Violence in Higher Education.

It was a direct response to the University Accord’s July 2023 Interim Report, which determined that “sexual assault and harassment on campus is affecting the wellbeing of students and staff, and their ability to succeed” and required “concerted action”.

Action plan

It identified governance improvements to address staff and student safety as one of five priority actions.

More broadly, the action plan responded to student-survivors, campus activists and sexual violence prevention advocates who had sought for decades to raise awareness of sexual violence in Australian universities and residential colleges and agitated for improved institutional responses.

The action plan incorporates seven key actions, including:

• the establishment of a new National Student Ombudsman
• the development of a new national code to prevent and respond to gender-based violence, with oversight by an expert unit in the Commonwealth Department of Education
• more robust data transparency and scrutiny requirements
• annual reports to Federal Parliament
• a commitment to enhance the oversight, standards and accountability of student accommodation providers in relation to their gender-based violence prevention and response.

What is the National Student Ombudsman?

Assuming the successful passage of the bill, the NSO will be able to accept complaints from current students or their representatives, anonymous complaints and group complaints from February 2025.

Importantly, given long-term frustrations with existing reporting pathways, the NSO will also consider historical complaints.

The NSO aims to provide a streamlined escalated complaints process, effectively replacing the current confusing patchwork of complaints mechanisms students must navigate if they are dissatisfied with their provider’s response.

Currently, when students who have been subjected to sexual violence seek redress beyond the administrative or disciplinary mechanisms offered by their higher education provider or the criminal justice system, they require an awareness and understanding of the myriad complaint options available under state and territory anti-discrimination or equal opportunity statutes, Ombudsman complaints procedures and work health and safety frameworks.

Or they can lodge a “concern” with TEQSA, a process so deficient it was condemned as “unacceptable”’ and “a shameful state of affairs” in a cross-party Senate Legal and Constitutional Affairs References Committee report in September 2023.

The new NSO model incorporates trauma-informed processes, such as ensuring the consent of student complainants before authorities proceed with particular actions, and keeping student complainants informed of recommendations of investigations — addressing some of the key critiques of TEQSA’s concerns process.

The NSO bill also provides several protections from reprisal provisions – an important acknowledgement that students raising concerns with their institutions have on occasion been punished academically or otherwise for reporting.

The new NSO function will also have broad information-gathering powers and multiple complaint-handling pathways, including a restorative engagement process and alternative dispute resolution process, in addition to conducting investigations.

Following an investigation, if the NSO finds that a higher education provider should take a different action, or provide reasons for an action, or that a policy or practice should be altered, or any other matter, the NSO can make recommendations to the principal executive officer of the higher education provider and request, within a specified time, that the provider advise the NSO of actions taken in response.

Enhanced transparency

While NSO recommendations are not binding, the reporting provisions provided in the bill represent a major improvement over current TEQSA processes and promise to greatly enhance institutional transparency and accountability.

TEQSA only publishes information about the outcomes of their regulatory decisions on the National Register of Higher Education Providers, available on the TEQSA website, when regulatory action is taken.

In recent years, TEQSA has finalised dozens of complaints (“concerns”) and other investigations regarding the handling of sexual violence matters by higher education providers, but — to the extreme frustration of survivors and their advocates — never found a breach of the Threshold Standards it administers, or taken regulatory action.

As a consequence, there has been no public record of these TEQSA’s investigations.

TEQSA has also refused to disclose which Australian universities have been subject to complaints, meaning there has been no transparency around which institutions have come under TEQSA’s scrutiny.

By contrast, the new NSO will be required to make regular reports to the Higher Education Minister, which will be tabled in Parliament. Higher education providers subject to complaints, recommendations made by the NSO, and their responses, will all be publicly available, providing a basis for robust public monitoring and better enforcement.

A final systemic improvement in the NSO model is its power to undertake own-motion investigations. Higher education providers and TEQSA have adopted an episodic approach to manage incidents of sexual violence, which has effectively suppressed systemic analysis and responses.

Together with the NSO’s consistent national coverage, this power will provide an opportunity for the NSO to consider issues occurring across the sector, rather than just focusing on one provider or jurisdiction in isolation.

Dr Allison Henry is a Research Fellow and Associate with the Australian Human Rights Institute. She completed her PhD on ‘Regulatory responses to sexual assault and sexual harassment in Australian university settings’ with the Institute in 2023. Allison served as a member of the Commonwealth Department of Education’s Gender-based Violence Stakeholder Reference Group and the Expert Reference Group on the National Higher Education Code to Prevent and Respond to Gender-based Violence.

Originally published under Creative Commons by 360info™.