This was the suggestion reported this week — but it is simply not correct.
Investigations into criminal matters are rightly handled by police and the courts, and universities are not proposing that this change.
In fact, universities strongly encourage anyone who comes forward to go to the police, where the matter will be dealt with according to the laws of the land.
In recent years, Australian universities have engaged in a sector-wide program of work to communicate even more clearly the standards of conduct required in our communities. A central message has been that our universities must be places of safety and respect.
Universities have always had codes of conduct or other policies that set out acceptable standards of behaviour expected from all members of the university community. And when allegations of a breach of those codes are brought to a university, there have been standards, policies and procedures to guide a response to these matters.
As is the case in many other sectors and workplaces, including the Australian Public Service, the standard is whether, on “the balance of probabilities”, there has been a breach of a code of conduct.
Use of this standard is not new. It has applied in matters of alleged misconduct in universities — including sexual misconduct — for decades. But what is new is that universities are communicating that standard with greater visibility to students.
In sector-wide guidelines, developed by Universities Australia and released this year, this point is made crystal clear: “ … a university cannot determine whether a crime or a civil wrong has occurred; rather, it can only determine whether someone has, on the balance of probabilities, breached the university’s code of conduct”.
These guidelines for the university sector were developed following extensive consultation with legal experts.
It bears repeating: universities do not determine criminal culpability. Nor are universities purporting to.
The Institute for Public Affairs has said — incorrectly — that universities are “effectively adjudicating a criminal matter”. And that universities are doing so using “a low threshold of guilt”.
That is not correct. Rather, misconduct processes assess whether someone’s conduct — on the balance of probabilities — falls below the standards required by universities’ codes of conduct or other policies.
The university does not make a judgment about whether a criminal act has occurred.
It is also important to highlight that universities encourage students who have reported a crime to go to police. But care is also taken to respect the wishes of — and not breach the privacy of — a student who reports a sexual assault to the university. In some cases, however, universities are required to report to police — for example under mandatory reporting obligations.
Where a matter is reported to police, we seek advice from police about whether a university misconduct process could prejudice a criminal investigation.
Irrespective of whether a matter is reported to police, universities still have obligations to ensure they do not breach their duty of care to their students.
Universities also have a duty to ensure the health and safety of those in the university community is not put at risk — a breach of which can expose the university to criminal penalty.
Whether a criminal investigation is under way or not, universities provide support and care to all students.
Our guidelines acknowledge that in all cases, natural justice and procedural fairness must apply and all parties must be kept informed as any misconduct complaint progresses.
For decades, dedicated university staff have been working with great care on these issues, hearing disclosures and reports of sexual violence and supporting students.
Some of those most likely to experience sexual harassment or sexual assault in Australia are the same groups that attend universities in large numbers — particularly women aged between 18 and 24.
That’s why universities have worked carefully with sexual violence experts, students and lawyers to build on earlier years of effort through a co-ordinated program of work across the sector. Universities’ priority is the safety and wellbeing of their students.
And so it will remain.
Catriona Jackson is chief executive of Universities Australia. This opinion piece was published in The Australian on Wednesday 24 October 2018.
