Our society has the power to, by force of law, strip us of our freedom. The safeguards of our criminal justice system give us comfort that the law-abiding won’t be punished as criminals. Even if you were to be accused, the system is designed to ensure that every innocent person is acquitted. It mostly works.
That protection isn’t offered in our universities.
Many Australian university students are subject to disciplinary codes that purport to, where an allegation of serious criminality is made, adjudicate on the facts of the allegation without many of the safeguards that ensure fairness in the criminal justice system.
An ordinary Australian accused of sexual assault has the right to access to details of the allegation and the evidence against them. He or she has a right to legal representation when interviewed, a right to call evidence before a court in their defence, and to test the reliability of the prosecution’s evidence. He or she is entitled to the presumption of innocence, and the charge would have to be proven by the prosecution beyond a reasonable doubt. He or she has a right of appeal.
But if you are a university student accused of the same act, the university applies its code of conduct and disciplinary policies, which operate very differently. Depending on the institution you attend, you may have no right to access to the evidence against you and no way to test the reliability or quality of the evidence. There are no rules of evidence, so you can’t check whether the investigator is using unreliable data. Edith Cowan University and the University of Queensland do not permit legal representation. The standard of proof applied by investigators at the University of Sydney is the balance of probabilities, regardless of the seriousness of the allegation. Even in a court dealing with a civil matter, the Briginshaw standard means that the more serious an allegation, the more satisfied a decision maker needs to be of its proof. Not so in our universities.
The independence of a university decision-maker is far from assured. The University of Sydney Student Sexual Assault and Sexual Harassment Response Procedures at section 7(5) indicate that the appropriate response to an allegation is to let “the student know they believe what the student is telling them” and to let “the student know that the incident was not their fault”. While these are no doubt well-intentioned efforts to support victims, policies like these assume the truth of factual questions that may ultimately be false and inadvertently create an environment in which a fair go for an accused is no sure thing.
You wouldn’t accept this situation in the criminal justice system. Even when allegations are made in the workplace, there are rights of appeal to courts and tribunals where proper curial processes protect both victim and accused. So why do we accept this for our sons and daughters in our universities?
While a court can deprive a person of their liberty, the consequences of an adverse finding by a university’s disciplinary decision maker can also be severe. The universities usually say they don’t seek to adjudicate the facts of crimes, just apply their codes of conduct and disciplinary policies. But that is a distinction without a difference.
An adverse finding can mean the loss of the right to continue one’s studies, or to graduate; forfeiture of the money and time invested in study; denial of the ability to achieve one’s goals of practice in the profession for which they have trained. The destruction of personal reputation that comes with a sloppily made disciplinary finding can be life-destroying. These are serious penalties, and they justify rigour in the way these issues are resolved.
At last there has been a victory for common sense on campuses, with a decision of Justice Ann Lyons of the Supreme Court of Queensland in Y v University of Queensland & Anor.
The applicant in that case is a final year UQ medical student accused of sexually assaulting another student in April 2018 while they were undertaking clinical placements and staying in the same student accommodation.
The student commenced legal proceedings against UQ, arguing that the university’s Disciplinary Board has no jurisdiction to decide allegations of criminal offences of a sexual nature. The Supreme Court accepted that contention.
Her Honour said: “It would indeed be a startling result if a committee comprised of academics and students who are not required to have any legal training could decide allegations of a most serious kind without any of the protections of the criminal law.”
Indeed, there is no reason why one would expect a university to have the skill set necessary to determine factual issues arising from allegations of sexual assault. Plagiarism, maybe. But not serious crime.
In Senate Estimates, I raised my concern about this issue with the Tertiary Education Quality and Standards Authority (TEQSA). In January TEQSA had produced a report on the adequacy of the response of the education sector to claims of sexual assault and sexual harassment. In it, universities were given guidance on the appropriate procedures for managing complaints of this kind. There was not a single mention of the need for procedural fairness or natural justice in the consideration of these matters. There was no reflection on the risks associated with university administrators playing investigator, prosecutor and campus judge. When I asked about these processes in Estimates, TEQSA’s representatives looked either amused or confused.
Justice Lyons’ decision should be a wake-up call for TEQSA and university administrators. We owe it to victims and accused people to determine these serious matters according to the criminal law – not in a kangaroo court.