Purpose of the Bill

The purpose of the Universities Accord (National Student Ombudsman) Bill 2024 (the Bill) is to implement Action 1 of the Action Plan Addressing Gender-based Violence in Higher Education, respond to recommendations made in the Australian Universities Accord Interim report and the Australian Universities Accord Final Report (Accord Final Report) and fulfill commitments made in the lead-up to the 2024–25 Budget. It follows other responses to the Accord including:

• the enactment of the Higher Education Support Amendment (Response to the Australian Universities Accord Interim Report) Act 2023
• the introduction of the Education Services for Overseas Students Amendment (Quality and Integrity) Bill 2024
• the introduction of the Universities Accord (Student Support and Other Measures) Bill 2024.

Structure of the Bill

The Bill comprises one Schedule with 4 Parts:

• Part 1 contains the amendments to the Ombudsman Act 1976 that establish the National Student Ombudsman (the Ombudsman) and set out its duties and powers
• Part 2 consists of amendments to the National Anti-Corruption Commission Act 2022 to prescribe the National Student Ombudsman as a Commonwealth integrity agency, as well as consequential amendments to the Privacy Act 1988 and the Tertiary Education Quality and Standards Agency Act 2011.
• Part 3 covers the application and transitional provisions of the amendments.
• Part 4 contains provisions that will only commence if the Intelligence Services Legislation Amendment Bill 2023 is enacted. That Bill proposes amendments to the Ombudsman Act consequential to changes to oversight arrangements for National Intelligence Community agencies.

Background

Universities Accord

The Labor party outlined its intention to establish an Australian Universities Accord in August 2021. In government, Minister for Education, Jason Clare said it would be ‘the first broad review of the higher education system since the Bradley Review’ in 2008.

Minister Clare announced the Accord’s Expert Panel, to be chaired by Professor Mary O’Kane, and the Terms of Reference in November 2022. One priority area of the Terms of Reference was ‘Governance, accountability and community’.

Australian Universities Accord Interim report

On 19 July 2023, Minister Clare announced the release of the Australian Universities Accord Interim Report (Interim Report). The Interim Report comprised 2 parts: priority actions to address immediate problems; and the Expert Panel’s initial views and preliminary findings about larger scale issues for further policy consideration to be discussed in the final report.

The Interim Report highlighted several issues relating to the duty of care of institutions to their students. In relation to ‘addressing harm’, the Interim Report acknowledged the 2021 National Student Safety Survey findings that ‘since starting university, 16.1% of participating students had been sexually harassed, and 4.5% had been sexually assaulted’ (p 119).

The Interim Report called for students ‘to be able to hold institutions to account if they are dissatisfied’ (p. 121). It noted stakeholder suggestions of achieving this by establishing a ‘Higher Education Student Ombudsman’ (p 121). One potential proposal for the Accord Final Report to consider was strengthening ‘the role for the Commonwealth Ombudsman in student complaints, for both international and domestic students’ (p 123).

The Australian Universities Accord Final Report

The Accord Final Report was delivered to the government in December 2023 but not published until February 2024, several days after the release of the Action Plan Addressing Gender-based Violence in Higher Education (discussed below). The report recommended the establishment of a National Student Ombudsman (pp 170–172). It noted that beyond the regulator, the Tertiary Education Quality and Standards Agency (TEQSA), students needed ‘a simpler and more accessible mechanism that allows them to pursue their complaints with appropriate supports’ (p 170). It called for this ‘pathway’ to be easily accessible to students and for the Ombudsman to ‘collect and regularly publish data on complaints made to universities and to the Ombudsman’ (pp 170–171).

Senate Legal and Constitutional Affairs References Committee inquiry

The Senate Legal and Constitutional Affairs References Committee inquiry (the Senate Inquiry) into current and proposed sexual consent laws in Australia reported in September 2023 and made a number of criticisms of the university sector for the handling of sexual assault cases, including that:

• ‘universities, with few exceptions, are re-traumatising students by failing to provide readily accessible, timely and appropriate support’ (p 112)
• advocates for students who have suffered sexual violence ‘hold the view that the process of making complaints and how universities and the regulator deal with such complaints is causing great trauma to the victims of sexual violence’ (p 113)
• TEQSA ‘has continually failed to exercise the full breadth of its powers to hold universities accountable for their woeful responses’ (p 116).

The inquiry’s recommendations included:

• the implementation of ‘an independent taskforce with strong powers, to oversight universities’ policies and practices to prevent and respond to sexual violence on campus and in residences’ (pp 115–116)
• ‘an independent review of the Tertiary Education Quality and Standards Agency’s response to sexual violence on university campuses’ (p 116).

Action Plan Addressing Gender-based Violence in Higher Education

Following the Interim Report and the Senate Inquiry, in October 2023 national Education Ministers agreed for the Inter-jurisdictional Working Group to provide advice on actions to strengthen university governance in relation to matters including: ‘ensuring student and staff safety through the prevention of gender-based violence and sexual harm, including on university campuses and in student residential settings’ (p 2). Discussion included consideration of establishing a national student ombudsman.

In November 2023, Minister Clare released a Draft Action Plan Addressing Gender-based Violence in Higher Education for further consultation. The first proposed action was the following: ‘In consultation with the states and territories, the Commonwealth should establish a new National Student Ombudsman with investigative and dispute resolution powers’ (p 6).

The final Action Plan Addressing Gender-based Violence in Higher Education (the Action Plan), released in February 2024, confirmed that the government would establish the National Student Ombudsman within the Commonwealth Ombudsman (p 8). It would have ‘investigative and dispute resolution powers to ensure domestic and international students have an effective, trauma-informed complaints mechanism to use when they are not satisfied by their higher education provider’s response’ (p 8).

The government also allocated in the 2024 Budget $19.4 million over 2 years from 2024–25 to establish the Ombudsman.

National Higher Education Code to Prevent and Respond to Gender-based Violence

As part of the Action Plan the government also intends to introduce a new National Higher Education Code to Prevent and Respond to Gender-based Violence (the National Code) (p 8).

The National Code will require all providers registered with TEQSA to embed a whole-of organisation approach to prevent and respond to gender-based violence (Actions 2 and 3, pp 10–13). The National Code will also apply to student accommodation providers (Action Plan, p 14).

Accordingly, in May 2024 the Government circulated an Issues Paper seeking views on the details of the proposed the National Code. In particular, the Issues Paper notes:

As a standard of the National Code, it is proposed that providers would be required to implement recommendations made by the National Student Ombudsman (once established) where the National Student Ombudsman makes a recommendation in favour of the student (p 25).

The 2024–25 Budget allocated $18.7 million over 4 years from 2024–25 (and an additional $28.8 million from 2028–29 to 2034–35) to introduce a National Higher Education Code to Prevent and Respond to Gender-based Violence from 1 January 2025 (Budget Paper No. 2, p 63).

The introduction of the National Code will require separate legislation.

Government rationale

During his speech introducing the Bill, Minister Clare noted the presence in parliament of representatives from the STOP Campaign, End Rape on Campus and Fair Agenda organisations. The speech focused on the prevalence of sexual assault and harassment at universities, the lack of adequate responses from universities, and the difficulty for students to make and escalate complaints.

In noting other issues the Ombudsman will be able to handle, as mentioned in the Explanatory Memorandum and discussed below, the Minister also expanded upon student safety and welfare more broadly:

where a student is subjected to homophobia, anti-semitism, Islamophobia or other forms of racism or discrimination on campus.

The Bill has therefore been linked to reports of antisemitism on campus in relation to protests over the crisis in Gaza (also the subject of a Private Senator’s Bill and Senate inquiry into the Bill). In an interview, Minister Clare acknowledged that the move to establish an Ombudsman had its origin in ‘evidence about rape, sexual assault, sexual harassment of university students at universities’. In addition, the proposed Ombudsman would have the ‘power to launch its own investigations, but also take complaints from students about antisemitism or any other complaint they wish to make about their experience at university’.

Policy position of non-government parties/independents and key interest groups

At the time of the release of the Action Plan, Senator Sarah Henderson, Shadow Minister for Education, welcomed the move to establish a National Student Ombudsman, as did the Greens. Both parties deemed the move long-awaited and argued for it to have sufficient powers to hold the universities to account.

The National Tertiary Education Union also welcomed the Action Plan.

At the time of the 2024 Budget, several independents, such as Allegra Spender and Zoe Daniel, welcomed the allocation towards establishing the Ombudsman.

Universities Australia both welcomed the initial announcement in February of a National Student Ombudsman, and the introduction of legislation.

The Australia/Israel & Jewish Affairs Council welcomed the introduction of the Bill. Prior to the introduction of the Bill, the Special envoy to combat Antisemitism, Jillian Segal, recommended in a submission to the Senate inquiry into the Private Senator’s Bill that ‘the terms of reference and resources and expertise’ of the Ombudsman ‘be amended to receive complaints regarding racism at universities, including antisemitism.’

Other commentary

Higher education policy commentator Andrew Norton expressed some specific concerns with the Bill, such as the scope for subjectivity in the Ombudsman’s operations and the wide coverage of university employees, and overall saw it as:

another major increase in higher education regulation. While the Ombudsman cannot order higher education providers to do things, negative reports will inflict reputational damage and may trigger regulatory action by other agencies.

Norton’s analysis was commended by the Future Campus newsletter. Norton was also wary of what he considered the potential for the Ombudsman to interfere with academic judgement, owing to provisions in the Bill that allow for exemptions to be made to the ‘excluded actions’ intended to cover academic judgement.

Key issues and provisions

Item 5 of the Bill inserts proposed Part IIF—National Student Ombudsman into the Ombudsman Act. Part IIF contains proposed sections 21AA—21AZL. Part IIF sets out how the Ombudsman is to carry out its main functions being:

• to deal with complaints about actions taken by higher education providers
• to conduct investigations into actions taken by higher education providers, on the Ombudsman’s own initiative and
• to give higher education providers advice and training on handling complaints.

Complaints that the National Student Ombudsman can investigate

Who can make a complaint

Proposed section 21AD provides that a complaint may be made to the Ombudsman against a higher education provider by, or on behalf of, a higher education student of the provider: proposed subsection 21AD(1). The definition of a higher education student (inserted by item 2) includes prospective and former students of the provider, and students such as those undertaking enabling and microcredential courses. However, both the definition and the excluded actions would prohibit the Ombudsman from investigating complaints made by VET students or about actions in relation to VET courses: proposed subsection 21AD(3).

A complaint made on behalf of a higher education student of the provider will proceed to action with the Ombudsman, only if the higher education student consents to the action: proposed subsections 21AG(2) and (3).

The Ombudsman could also take transfers of complaints from the Ombudsman of a State, or State or Territory bodies and Commonwealth entities that are prescribed for this purpose: proposed section 21AE.

What complaints can the Ombudsman consider

The Ombudsman may consider a complaint about any action (other than an excluded action) taken by a higher education provider: proposed subsection 21AD(2). This provision offers a wide remit, and the Explanatory Memorandum lists examples such as student safety and welfare, course administration, teaching provision and facilities, disciplinary processes, reasonable adjustments for disability and student accommodation (p 22).

The Bill deems an ‘action’ by a higher education provider to be any action taken by a person because the person is the higher education principal executive officer or higher education officer—whether or not the action was in connection with, incidental to, or within their duties, or was in connection with performing services for or on behalf of the provider: proposed subsection 3(6E). A higher education officer is defined to include not only officers or employees of the provider, but also someone who performs services for or on behalf of the provider: definition inserted by item 2 of the Bill.

The scope of complaints that could be considered by the Ombudsman is therefore defined more clearly according to what cannot be considered by the Ombudsman or what the Ombudsman can decide not to consider.

On the former, the excluded actions in the Bill cover areas relating to staff employment and appointments, the exercise of academic judgement, and VET courses: proposed subsection 21AD(3). In addition to those actions which are listed as being excluded, the Bill allows the making of National Student Ombudsman Rules (the Rules) (under proposed section 21AZL) in relation to ‘any other kind of action which may be excluded’: proposed paragraph 21AD(3)(e). The Rules may also prescribe that an action is not an excluded action: proposed subsection 21AD(4). The latter could occur, according to the Explanatory Memorandum, where the definition of excluded actions ‘inappropriately’ hinders either the making of complaints or the Ombudsman’s ability to handle complaints ‘inappropriately’ (p 24).

Actions the Ombudsman can take

The Ombudsman may decide to refer the matters raised in a complaint to another Commonwealth entity or a State or Territory body: proposed subsection 21AH. Otherwise, the Ombudsman can deal with the complaint in ways covered by respective subdivisions and a division listed in proposed section 21AG:

• referring the complaint to the higher education provider (Subdivision C)
• using an alternative dispute resolution process (Subdivision D)
• using a restorative engagement process (Subdivision E)
• conducting an investigation (Division 4).

Proposed section 21AG also sets out that any of these actions taken by the Ombudsman would need to be agreed to by the complainant, and not be pursued if the complainant withdrew their complaint or if the complaint related to an excluded action.

Importantly, the Ombudsman can decide not to deal with a complaint: proposed section 21AJ.

Referring the complaint to the higher education provider

The Ombudsman may request that a higher education provider investigate a complaint and report to the Ombudsman on the outcome of the investigation and any proposed action to address it within a period specified in the request: proposed section 21AK. The Ombudsman may respond to the provider’s report by making recommendations to the higher education principal executive officer of the provider: proposed section 21AL.

The Explanatory Memorandum suggests that this way of dealing with a complaint would be more effective or appropriate in certain cases, such as if the student has complained to a provider and there has been an ‘unreasonable delay’ in the provider’s consideration of the complaint, or if the provider has given the appearance of not having considered the complaint (p 29).

Alternative dispute resolution

The Ombudsman may try to settle a complaint using an alternative dispute resolution (ADR) process, conducted by the Ombudsman or someone engaged by the Ombudsman: proposed subsection 21AM(1). The latter would be required to report to the Ombudsman on the outcome of the ADR: proposed subsection 21AP(3). The Ombudsman may compel the participation of a higher education provider in the ADR, and set out the terms for their participation (such as time and place) through a direction in writing: proposed section 21AN. A person commits an offence if the person is directed to participate in ADR and the person fails to do so. The maximum penalty is 10 penalty units (currently equivalent to $3,130).

Restorative engagement process

The Ombudsman may conduct a ‘restorative engagement process’, in which participation would be voluntary: proposed section 21AR. According to the Explanatory Memorandum, the process would:

bring together the student and a senior leader of the relevant higher education provider to enable the student to provide their personal account of the action complained of, the harm caused and its impact, and to receive acknowledgement of their experience by the provider. (p 32)

The Explanatory Memorandum suggests that this process could be appropriate in the case of examples involving ‘serious historical complaints or complaints about gender-based violence’ (pp 32–33).

Investigation

The Ombudsman may investigate the action of a higher education provider in response to a complaint or on its own initiative: proposed subsection 21AT(1). The latter is elaborated upon in the Explanatory Memorandum:

This includes, for example, investigations into broader issues raised with the National Student Ombudsman by multiple complainants or in media reporting. Own motion investigations can be undertaken in relation to both the action of a single provider and systemic issues in the sector across multiple providers. (p. 33)

In conducting an investigation, the Ombudsman would be required to inform the higher education principal executive officer of its intention, and conduct the investigation in private: proposed subsections 21AU(1) and (2)). The report must not include opinions that are, either expressly or impliedly, critical of a provider or a higher education officer unless, before completing the investigation, the Ombudsman has offered the higher education principal executive officer or higher education officer the opportunity to make written submissions: proposed subsection 21AU(3).

The Explanatory Memorandum states that the Ombudsman could ‘accept and deal with anonymous complaints from students, or complaints made under a pseudonym’ (p 22).

Information gathering powers

The Ombudsman has the power to make inquiries in relation to whether and how it should deal with a complaint or conduct an investigation, and towards considering whether a higher education provider has taken adequate and appropriate action in respect of any recommendations: proposed section 21AZ. The Ombudsman may give notices requiring a person to provide the information, documents or records that it specifies, or to answer questions, where the person is capable of complying with the requirement and the information is relevant to the Ombudsman’s duties: proposed section 21AZA.

Not dealing with a complaint

The Ombudsman may also decide not to deal with a complaint. Amongst other things, this may be because it is being dealt with by other authorities, the complainant did not first raise the complaint with the provider, the complaint is ‘frivolous or vexatious’, or the Ombudsman considers that dealing with the complaint is ‘not warranted having regard to all the circumstances’: proposed section 21AJ.

Reporting

Requirement for an investigation report

At the conclusion of an investigation, the Ombudsman must report to the higher education provider if they form the opinion that the action taken by the provider:

(i)appears to have been contrary to law; or

(ii) was unreasonable, unjust, oppressive or improperly discriminatory; or

(iii) was otherwise, in all the circumstances, wrong: proposed paragraph 21AV(1)(b)

and the Ombudsman considers that:

(i) some particular action could be, and should be, taken to rectify, mitigate or alter the effects of the action taken

(ii) a policy or practice on which the action taken was based should be altered

(iii) reasons should have been, but were not, given for the action taken or

(iv) any other thing should be done in relation to the action taken: proposed paragraph 21AV(1)(c).

The Ombudsman must include their opinions and the reasons for forming these opinions in the report to the higher education provider. In addition, the Ombudsman may set a deadline for the higher education provider to respond with proposals with respect to the matters and recommendations made in the report: proposed subsection 21AV(4).

Providing investigation reports

Proposed subsection 21AV(6) allows for the Ombudsman to give a copy of the report, and any comments about the report made by the higher education provider, to any (or all) of the Higher Education Minister, the Secretary of the Higher Education Department, or the Chief Executive Officer of TEQSA.

Where the report of an investigation has been given to a higher education provider by the Ombudsman and the Ombudsman forms the opinion that the provider has not taken adequate and appropriate action to address the matters in the report, then it is open to the Ombudsman to give the report to the Higher Education Minister and request them to table copies of the report and accompanying comments in both Houses of Parliament: proposed section 21AW.

Annual reports

The Ombudsman is required to produce annual reports – and could provide other reports on its operations – that are presented to Parliament: proposed section 21AX. These reports must contain certain details related to the period being reported on, including but not limited to:

• the number and nature of complaints received
• the number of investigations started and/or completed, in relation to complaints and on the Ombudsman’s own initiative
• details of recommendations made to higher education providers and actions they have taken
• the number of alternative dispute resolution or restorative engagement processes started and/or concluded
• any trends or broader issues arising, or any improvements that could be made to handling complaints: proposed subsection 21AX(7).