Chapter 1Introduction

1.1The Universities Accord (National Student Ombudsman) Bill 2024 (bill) would amend the Ombudsman Act 1976 (Act) to establish a National Student Ombudsman (NSO).[1]

1.2The NSO would be a statutory function of the Commonwealth Ombudsman and would provide a national mechanism for students to complain about the actions of higher education providers.[2]

1.3According to the Explanatory Memorandum, the NSO would be 'independent, impartial and provide higher education students with access to an effective, trauma-informed escalated complaints mechanism'.[3]

1.4The bill would implement Recommendation 18b of the Australian Universities Accord Final Report,[4] which recommended establishing a National Student Ombudsman as one measure to 'improve the overall student experience and reflect domestic and international student expectations of their higher education outcomes'.[5]

1.5Establishing the NSO is also the first action of the Action Plan Addressing Gender-based Violence in Higher Education, which 'will set best-practice requirements for higher education providers in preventing and responding to gender-based violence'.[6]

Context of the bill

The Australian Universities Accord process

1.6The Australian Government (government) invested $2.7 million over two years from 2022–23 to deliver the Australian Universities Accord (Accord).[7]

1.7The Accord process was 'the biggest and broadest review of the higher education sector in 15 years'.[8] It involved a year-long review led by a Panel of eminent Australians,[9] and 'sets out a blueprint for higher education reform for the next decade and beyond'.[10]

1.8In addition to the recommendations in the Accord's final report, taking action to address student safety was also identified as one of five priority actions by the Accord panel in its interim report, which was released in July 2023.[11]

Action Plan Addressing Gender-based Violence in Higher Education (Action Plan)

1.9The Action Plan was agreed by all Australian education ministers in February 2024 and recognises:

… the unique role that higher education providers can and must play in driving the broader social change needed to address gender-based violence, as well as the distinct responsibilities they hold in relation to creating safe study, work, social and living environments.[12]

1.10As part of implementing the Action Plan, the government has committed to the introduction of a National Higher Education Code to Prevent and Respond to Gender-based Violence (National Code).[13]

1.11The purpose of the National Code is to 'ensure higher education providers work towards an education system free from gender-based violence'.[14]

1.12Once finalised and legislated, the National Code will 'set standards across seven areas to ensure higher education providers embed a whole-of-organisation approach to preventing and responding to gender-based violence'.[15]

Consultation on the bill

1.13Consultation on the NSO was undertaken between late November 2023 and the end of January 2024 as part of consultation on the draft Action Plan. This included 'targeted consultation with students and victim-survivor advocates, gender-based violence experts, the higher education sector, and student accommodation providers'.[16]

1.14Additional targeted consultation on the implementation of the NSO took place in June and July 2024. This included the higher education sector, students, organisations representing culturally and linguistically diverse people, First Nations people, people with disability, LGBTQIA people, gender-based violence experts, as well as victim-survivors and their advocates.[17]

1.15The government is engaging with state and territory governments on 'the detailed design and implementation of the NSO'.[18]

Overview of the bill

1.16The bill would establish the NSO as a dedicated national body for handling student complaints within Australia's higher education sector.[19] Under proposed section 21AB, the Commonwealth Ombudsman—or any person appointed to act in that role—also holds the office of NSO.[20]

Establishment and functions of the NSO

1.17The main functions of the NSO would be to:

deal with complaints made by, or on behalf of, higher education students about actions taken by their higher education provider;

conduct investigations in response to complaints, as well as own-motion investigations, into actions taken by higher education providers;

report and make recommendations under proposed Division 5; and

advise higher education providers and provide them with training on best practice complaints handling.[21]

Complaints to the NSO

Who can make a complaint

1.18The bill would enable complaints to be made against higher education providers by a higher education student of that provider, or by an individual or organisation on behalf of a student—provided the student has consented to the complaint being made.[22]

1.19A 'higher education student' is defined as a current, former or prospective student in relation to any course of study with a higher education provider (other than a VET course).[23]

1.20The NSO would also be able to consider group complaints, as well as historical complaints.[24] Complaints would also be able to be made anonymously or under a pseudonym.[25]

1.21Where a complainant is both a student and staff member of a higher education provider, the NSO would be able to handle their complaint as it relates to their role as a student.[26]

Grounds for making a complaint

1.22The bill would allow the NSO to deal with a wide range of complaints about the actions of higher education providers, including complaints relating to:

student safety and welfare, including gender-based violence, other forms of violence, and bullying and harassment;

course administration, such as timeliness and accuracy of information provided to students;

teaching provision and facilities, such as the sufficiency of staffing to meet students' educational, academic and administrative needs;

disciplinary processes, such as misconduct procedures;

reasonable adjustments for students with disability or special circumstances; and

provider owned/operated student accommodation.[27]

1.23However, complaints would not be allowed in relation to excluded actions. Excluded actions would be defined as any action:

(a)taken with respect to a person employed by a higher education provider, being action taken in relation to that employment;

(b)taken with respect to the appointment of a person to an office of a higher education provider;

(c)to the extent that the action involves the exercise of academic judgment;

(d)to the extent that the action is taken with respect to a VET course or a student who is not a higher education student of the provider; and

(e)prescribed by the NSO Rules.[28]

1.24The intent of paragraph (a) would be to prevent the NSO from dealing with employment related complaints but allow scope for consideration of matters that are relevant to provider employees more generally. For example, in response to a complaint about harassment by a provider employee, the NSO may wish to consider the mandatory training provided to staff who interact with students.[29]

1.25The intent of paragraph (b) would be to prevent the NSO from dealing with complaints about office holder appointments such as Chancellors, Vice Chancellors, Board and Council members.

1.26The intent of paragraph (c) would be to prevent the NSO from dealing with complaints about actions related to the exercise of academic judgement, for example curriculum content, teaching and assessment methods, and the academic merit of awarded grades. Matters that do not require academic judgement would still be within the remit of the NSO.[30]

1.27Paragraph (d) would preclude complaints about actions relating to VET courses—including those offered by dual sector providers—and students of dual sector providers who are not higher education students.[31]

1.28Paragraph (e) would allow the NSO Rules to prescribe additional excluded actions where it becomes clear that it is inappropriate for the NSO to deal with complaints about a particular matter.[32]

1.29The bill would also allow for the NSO Rules to prescribe additional actions that are not excluded actions. This is intended to provide flexibility if the definition of an excluded action is found to inappropriately limit the matters students can complain about or to impact provision of an effective complaint handling process.[33]

Complaints taken to be made to the NSO

1.30Although the intent is for the NSO to be 'the primary escalated complaints-handling pathway for higher education students', complaints may continue to be made to other Commonwealth, state and territory complaints-handling bodies.[34]

1.31Accordingly, the bill would provide for the 'effective transfer of complaints from prescribed Commonwealth, state and territory bodies (including state and territory ombudsmen)' to the NSO.[35] A complaint transferred to the NSO would be taken to be a complaint made to the NSO if:

the complaint was made to a prescribed body by, or on behalf of, a higher education student of the provider; and

the prescribed body transfers the complaint to the NSO in accordance with a law of the Commonwealth, a state or territory.

Dealing with complaints to the NSO

1.32The bill would allow the NSO to deal with complaints about the actions of a higher education provider by:

referring the complaint back to the higher education provider;

using an alternative dispute resolution process to attempt to resolve the complaint;

using a restorative engagement process; and/or

conducting an investigation of the complaint.[36]

1.33While the above methods of dealing with complaints are not mutually exclusive, the NSO would not be able to take any action without the complainant agreeing to the action being taken.[37]

1.34The bill would also prevent the NSO from acting where a complainant withdraws their complaint. However, the NSO would be able to commence an own motion investigation if a withdrawn complaint revealed 'an issue of sufficient seriousness'.[38]

Referral of matters to other Commonwealth, state and territory bodies

1.35The bill would allow the matters raised in complaints to be referred—in whole or in part—to another Commonwealth, state or territory entity if the NSO believes the other entity could deal with the matter 'more effectively or conveniently' and the complainant agrees to the referral. Where a complaint is referred in its entirety, the NSO may decide not to investigate the complaint further.[39]

Deciding not to deal with complaints

1.36The bill sets out the circumstances in which the NSO can decide not to deal with, or not to continue dealing with, a complaint. These are where:

(a)the complaint is frivolous, vexatious or not made in good faith;

(b)the complainant does not have sufficient interest in the subject matter of the complaint;

(c)the complainant has not yet raised the subject matter of the complaint with the higher education provider;

(d)the action complained of is an excluded action;

(e)the complaint has been, is being, or is to be dealt with by another Commonwealth entity, an Ombudsman of a state (including an Ombudsman of a territory) or a state or territory body;

(f)the action has been, is being, or is to be reviewed by a court or tribunal; and

(g)dealing with or continuing to deal with the complaint is not warranted having regard to all the circumstances.[40]

1.37While paragraph (c) would allow the NSO not to deal with a complaint that had not already been made to a provider, the Explanatory Memorandum also recognises that there may be situations where it is appropriate to complain directly to the NSO.[41]

1.38In recognition of the potential for overlapping jurisdiction in relation to complaints about higher education providers, paragraph (e) is designed to prevent double-handling or forum shopping.

Referring complaints to higher education providers

1.39With the agreement of the complainant, the bill would enable the NSO to refer a complaint back to the relevant higher education provider. In doing so, the NSO may ask the provider to investigate the complaint and report back (within a specified time) on the outcome and proposed actions arising.[42]

1.40This provision could be employed where investigation by the provider 'is likely to be more effective or appropriate' than the complaint being dealt with by the NSO—for example, where 'there has been unreasonable delay in consideration of the complaint, or the provider appears not to have considered the complaint'.[43]

1.41Following receipt of a report from a provider, the NSO would be able to make recommendations to the provider if there are deficiencies in the way the complaint has been handled. This would not require the student to make a new complaint or an own motion investigation by the NSO.[44]

Alternative dispute resolution

1.42The bill would allow the NSO to employ alternative dispute resolution—such as mediation or conciliation—to deal with complaints. The process could be conducted by the NSO, or a third party engaged by the Commonwealth Ombudsman, to ensure the process is conducted by appropriate and experienced specialist practitioners.[45]

1.43While participation in alternative dispute resolution processes would be voluntary for complainants, the NSO would be able to require provider participation. It would be an offence for a person directed to participate in such a process not to participate in all, or part, of that process.[46]

1.44Nothing said or done during participation in an alternative dispute resolution process would be admissible in any court or in proceedings before a person authorised to hear evidence.[47]

Restorative engagement process

1.45The bill would enable the NSO, where appropriate, to conduct restorative engagement processes in relation to a complaint. This would require the consent of a complainant and participation would be voluntary for both the complaint and the provider.[48]

1.46This approach could be appropriate when dealing with gender-based violence complaints or serious historical complaints.[49]

Investigations

1.47The bill would empower the NSO to investigate complaints as well as conduct own motion investigations. Own motion investigations could be undertaken in relation to individual providers, as well as in relation to systemic issues across multiple providers.[50]

1.48A range of procedural fairness requirements would apply to investigations by the NSO. These include:

informing the provider's principal executive officer of the investigation prior to its commencement;

conducting the investigation in private and in the manner the NSO sees fit (subject to the Ombudsman Act) to 'prevent a provider being prejudiced, particularly suffering reputational damage, before the outcome of the investigation is known; and

providing a provider or its staff with a right to be heard before the NSO makes adverse findings.[51]

Reporting by the NSO

1.49The bill sets out reporting arrangements for the NSO, including reports following an investigation and annual reports.[52]

Investigation reports

1.50Following an investigation, the NSO would be required to report to the relevant provider where an investigation has been completed and the NSO believes that:

the action taken appeared 'contrary to law, was unreasonable, unjust, oppressive or improperly discriminatory, or was otherwise in all the circumstances wrong'; and

'some particular action could and should be taken to rectify, mitigate or alter the effects of the action taken, a policy or practice on which the action was taken was based should be altered, reasons for taking the action were not given but should have been given, or any other thing should be done in relation to the action taken'.[53]

1.51When giving a report to a provider, the NSO would be able to ask the provider for the details of any action the provider proposes to take with respect to its report, within a specified time period. This would facilitate follow up and monitoring by the NSO in relation to its reports and recommendations.[54]

1.52At its discretion, and after providing the report to the relevant provider, the NSO would be able to provide a copy of the report and any comments by the provider to the Minister for Education (Minister), the Secretary of the Department of Education, and/or the Chief Executive Officer of TEQSA.[55]

1.53Where the NSO believes a provider 'has not taken adequate and appropriate action' in relation to a report within a reasonable time period, the NSO could provide a copy of the report (and any provider comments) to the Minister for Education and could request that the Minister table the report and comments in both Houses of Parliament.[56]

Annual reports

1.54The bill would require annual reporting on the NSO's operations and functions to be made publicly available and tabled in both Houses of Parliament. This would include 'reporting on the number and nature of complaints per higher education provider' but would not include identifying information about complainants without their consent.[57]

1.55The annual report would also include 'observations about any trends in complaints or any broader issues arising from investigations, as well as improvements that could be made by higher education providers'.[58]

1.56The NSO would also be able to report publicly throughout the year on its operations or the performance of its functions.[59]

Protection from reprisals

1.57The bill would amend the Ombudsman Act to make it a criminal offence to 'threaten or subject a person to detriment because they have made, may have made, propose to make or could make a complaint' to the NSO (or the Overseas Student Ombudsman), with a penalty of six months imprisonment.[60]

NSO Rules

1.58The bill would allow rules to be made in relation to the NSO's functions and operations. For example, the rules may prescribe the:

kinds of actions that are or are not excluded actions;

the entities authorised to transfer complaints to, and share information with, the NSO;

matters that the NSO must have regard to when directing a provider to participate in alternative dispute resolution or deciding that a complaint cannot be settled by alternative dispute resolution; and

information that must be included in a notice requiring information or documents to be provided or requiring attendance to answer questions.[61]

1.59The NSO Rules would not be able to create offences or civil penalties, provide powers of arrest, detention, or entry search or seizure, impose taxes, set amounts to be appropriated from the Consolidated Revenue Fund (under an Ombudsman Act appropriation), or directly amend the text of the Ombudsman Act.[62]

Consequential amendments

1.60To facilitate establishment of the NSO, the bill would also make minor consequential amendments to the National Anti-Corruption Commission Act 2022, the Privacy Act 1988 and the Tertiary Education Quality and Standards Agency Act 2011.

Financial implications

1.61The Explanatory Memorandum states that $19.4 million has been allocated over two years from 2024–25 to establish the NSO, with future funding held in the contingency reserve,[63] noting the government will explore cost recovery arrangements from higher education providers from 2026–27.[64]

Consideration by other parliamentary committees

1.62When examining a bill, the committee considers any relevant comments published by the Senate Standing Committee for the Scrutiny of Bills (Scrutiny Committee) and the Parliamentary Joint Committee on Human Rights (PJCHR).

1.63The Scrutiny Committee considered the bill in its Scrutiny Digest 12 of 2024 and made no comment.[65]

1.64At the time of writing, the PJCHR had not considered the bill.[66] However, the Explanatory Memorandum's Statement of Compatibility with Human Rights stated that the bill is compatible with the 'rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011'.[67]

Conduct of the committee's inquiry

1.65On 19 September 2024, the Senate referred the provisions of the Universities Accord (National Student Ombudsman) Bill 2024 to the Committee for inquiry and report by 10 October 2024.

1.66The committee advertised the inquiry on its website and invited submissions by 1 October 2024. The committee received 24 submissions, listed at Appendix 1.

Acknowledgement

1.67The committee thanks those organisations and individuals who contributed to this inquiry by preparing written submissions.

Footnotes

[1]Explanatory Memorandum, p. 3.

[2]Explanatory Memorandum, p. 3.

[3]Explanatory Memorandum, p. 3.

[4]Explanatory Memorandum, p. 3.

[5]Australian Government, Australian Universities Accord Final Report, December 2023, p. 26.

[6]Explanatory Memorandum, p. 4.

[7]Department of Education, Australian Universities Accord (accessed 2 October 2024).

[8]Department of Education (DoE) and Attorney-General's Department (AGD), Submission 16, p. 3.

[9]Department of Education, Australian Universities Accord (accessed 2 October 2024).

[10]DoE and AGD, Submission 16, p. 3.

[11]Australian Government, Australian Universities Accord Interim Report, June 2023, p. 13.

[12]Department of Education (DoE) and the Attorney-General’s Department (AGD), Submission 16, p.3.

[13]Explanatory Memorandum, p. 4.

[14]DoE and AGD, Submission 16, p. 14.

[15]DoE and AGD, Submission 16, p. 14.

[16]Explanatory Memorandum, p. 5.

[17]Explanatory Memorandum, p. 5.

[18]Explanatory Memorandum, p. 5.

[19]The Hon Jason Clare MP, Minister for Education, House of Representatives Hansard, 11 September 2024, p. 6.

[20]Explanatory Memorandum, p. 21.

[21]Universities Accord (National Student Ombudsman) Bill 2024, s.21AA and Explanatory Memorandum, p. 21.

[22]Explanatory Memorandum, p. 22. Where a complaint is made on behalf of a student, the student will be considered the complainant.

[23]Explanatory Memorandum, p. 18. The definition also includes current, former or prospective students living outside Australia, such as those studying at an overseas campus.

[24]DoE and AGD, Submission 16, p. 6. There would be no time limit on the historical complaints that could be considered if the Student Ombudsman believes the complaint can be handled effectively.

[25]Explanatory Memorandum, p. 22.

[26]Explanatory Memorandum, p. 22.

[27]Explanatory Memorandum, p. 22.

[28]Explanatory Memorandum, pp. 22–23.

[29]Explanatory Memorandum, p. 23.

[30]Explanatory Memorandum, p. 23. Matters not requiring academic judgement include for example, granting of special consideration, reasonable adjustments, research supervision, provision and standard of teaching facilities, disciplinary and misconduct procedures, as well as policies and procedures about academic matters (which do not require academic judgement).

[31]Explanatory Memorandum, pp. 23–24.

[32]Explanatory Memorandum, p. 23.

[33]Explanatory Memorandum, p. 24.

[34]Explanatory Memorandum, p. 24.

[35]Explanatory Memorandum, p. 24. A prescribed body is defined as an Ombudsman of a state, or a Commonwealth entity or state or territory body prescribed by the National Student Ombudsman Rules. The term Ombudsman of a state also includes an Ombudsman of a territory.

[36]Explanatory Memorandum, p. 26.

[37]Explanatory Memorandum, p. 26.

[38]Explanatory Memorandum, p. 26. In these cases, the Student Ombudsman would be subject to privacy protections (including the requirement for complainant consent) in relation to personal information that disclosed by a student in their complaint.

[39]Explanatory Memorandum, p. 27.

[40]Explanatory Memorandum, p. 27.

[41]Explanatory Memorandum, p. 27.

[42]Explanatory Memorandum, p. 29.

[43]Explanatory Memorandum, p. 29.

[44]Explanatory Memorandum, p. 29.

[45]Explanatory Memorandum, p. 30.

[46]DoE and AGD, Submission 16, p. 9. Explanatory Memorandum, pp. 30 and 31. The maximum penalty is 10 penalty units, which is consistent with the penalty attached to a similar offence for failing to participate in mediation as directed by the Private Health Insurance Ombudsman.

[47]Explanatory Memorandum, p. 32. An authorised person refers here to a person authorised by a Commonwealth, state or territory law, or by consent of the parties to the process, to hear evidence.

[48]Explanatory Memorandum, p. 32.

[49]Explanatory Memorandum, p. 33.

[50]Explanatory Memorandum, p. 33.

[51]Explanatory Memorandum, p. 34.

[52]Explanatory Memorandum, p. 34.

[53]Explanatory Memorandum, p. 34.

[54]Explanatory Memorandum, p. 35.

[55]Explanatory Memorandum, pp. 35–36.

[56]Explanatory Memorandum, p. 36. The Minister would be required to table the report and comments in each house of Parliament within 15 sitting days after receiving the request from the National Student Ombudsman.

[57]DoE and AGD, Submission 16, p. 11.

[58]DoE and AGD, Submission 26, p. 11.

[59]DoE and AGD, Submission 16, p. 11.

[60]DoE and AGD, Submission 16, p. 11. A person would also be able to apply for a range of civil remedies (such as compensation, apologies and injunctions) to prevent or address detrimental action taken, or threatened, in relation to a complaint, or potential complaint, to the National Student Ombudsman or the Overseas Student Ombudsman.

[61]DoE and AGD, Submission 16, pp. 12–13.

[62]DoE and AGD, Submission 16, p. 13.

[63]Explanatory Memorandum, p. 5.

[64]DoE and AGD, Submission 16, p. 3.

[65]Senate Standing Committee for the Scrutiny of Bills, Bills with no committee comment, Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 12 of 2024; [2024] AUSStaCSBSD 194.

[66]Parliamentary Joint Committee on Human Rights, Index of Bills Considered by the Committee as at 13 September 2024, p. 12 (accessed 2 October 2024).

[67]Explanatory Memorandum, p. 15.