Last week the government introduced legislation for a National Student Ombudsman.

This post outlines key provisions of the bill. A government summary is here. A subsequent post looks at the potential impact of the bill on academic life.

Statutory references are to the Universities Accord (National Student Ombudsman) Bill, using the sections as they would appear in the Ombudsman Act 1976 if the bill passes.

Which students can complain?

All students of higher education providers, except those enrolled in VET courses, can complain to the National Student Ombudsman (abbreviated to Ombudsman from now). Apart from the VET exception, non-higher education students are included. Enabling, microcredential and professional development course students will be covered. In some cases prospective or former students can also make complaints: sections 3(1) and 21AD(1)(a).

Another person can make a complaint on behalf of the student: section 21AD(1)(b).

The explanatory memorandum says that anonymous complaints can be made (p. 22), although I can’t find the statutory basis for that. Under section 21AD(1) the person has to be a student of the higher education provider, which will be hard to prove if anonymous.

Possibly the anonymous complaint claim in the EM relies on a general power of the Ombudsman to investigate matters on its own initiative: section 21AT. An anonymous complaint might provide a reason for such an investigation.

The Ombudsman ‘may’ decide not to deal with a matter if the complainant does not have a sufficient interest in the subject matter of the complaint: section 21AJ(b).

If a student makes a complaint, there are various protections from ‘reprisals’: sections 35D to 35F.

What can students complain about?

Students can complain about any action of a higher education provider other than an excluded action. Excluded actions include staff employment and actions that involve academic judgement (about which more in a subsequent post): section 21AD(3).

The bill’s explanatory memorandum gives examples of matters students can complain about: student safety, student welfare, course administration, teaching quality, facilities, disciplinary matters, reasonable adjustments for disability, and student accommodation when owned or operated by the provider (p. 22).

Complaints can be upheld if action or non-action [section 3(1)] is contrary to law: section 21AV(1)(b)(i). This raises issues about the interaction of this law with other higher education laws, which I may discuss in another post.

However a provider acting within the law does not protect them from the Ombudsman. They may also get into trouble if actions or non-actions are ‘unreasonable, unjust, oppressive or improperly discriminatory’ or ‘in all the circumstances wrong’: sections 21AV(1)(b)(ii) & (iii). These provisions introduce subjective judgment into the system.

The Ombudsman can refuse to investigate complaints deemed frivolous, vexatious, or not made in good faith: section 21AJ(a).

A wide range of higher education connected staff will be covered

Due to the Commonwealth’s lack of constitutional authority over education this bill uses the corporations power. This means the bill deems actions by individuals to be actions of a corporation, i.e. the higher education provider.

To be covered, individuals must be someone who has executive responsibility or a higher education officer. An officer includes employees and persons who perform services for or on behalf of the provider: section 3(1).

‘On behalf of’ brings in outsourced activities, and may include employees of tertiary admissions centres (prospective students), online program managers and student unions.

This legislation partly responds to sexual harassment and assault issues – the main topic of the minister’s second reading speech – but faces the problem that these things are never part of the authorised activities of higher education staff. I read section 3(6E) as attempting to deal with this by requiring some connection to their role. Separate legislation for a code on sexual misconduct will be introduced later.

Students cannot make direct complaints to the Ombudsman about other students, unless the other student is also a member of staff. However, they can complain about how the higher education provider handled their complaint against another student.

The process for the complaint

Typically, a student must complain to their higher education provider first. The explanatory memorandum says that the Ombudsman would require ‘compelling’ reasons to take a complaint without this first step (p. 27).

If the Ombudsman decides to investigate a complaint it must be conducted in private: section 21AU(2).

The Ombudsman can require a person – I think this is any person, including other students and third parties as well as higher education provider officers – to provide information and records: section 21AZA(1).

A person can also be required to appear in person to answer questions: section 21AZA(1)(c).

A person is not excused from providing information on the grounds of self-incrimination: section 21AZA(4). However this information is not admissible in criminal proceedings: section 21AZA(5).

A person is not excused from providing information because it is subject to legal professional privilege: section 21AZA(7).

What can the National Student Ombudsman do after an investigation?

The Ombudsman cannot reverse a decision or impose a penalty on a staff member or a student in respect of the original complaint.

The Ombudsman can send a report to the higher education provider stating that a particular action should be taken to rectify or mitigate the effects of a decision found to be illegal, discriminatory or otherwise wrong: section 21AV(1)(c)(i).

The Ombudsman can send a report to the higher education provider stating that a policy or practice should be altered: section 21AV(1)(c)(ii).

The Ombudsman can require the higher education provider to respond within a specified time: section 21AV(4).

The Ombudsman has to give the provider, or affected staff, the right to respond to critical opinions: section 21AU(3).

The Ombudsman may give a copy of the report, along with any comments by the provider, to the minister, the secretary of the Department and TEQSA: section 21AV(6).

The Ombudsman can at any time notify a higher education provider principal executive of staff misconduct: section 21AZH.

Alternative dispute resolution

The Ombudsman can also try alternative dispute resolution.

Higher education provider staff can be forced to participate in an alternative dispute resolution, with a fine of up to 10 penalty units ($3,300) if they do not.

Restorative engagement process

The Ombudsman can set up a ‘restorative engagement process’: section 21AR. According to the explanatory memorandum (pp. 32-33):

‘The conduct of a restorative engagement process is intended to 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. While restorative engagement would not be appropriate in all cases, this approach may be used, for example, in relation to serious historical complaints or complaints about gender-based violence.’

Unlike other aspects of this bill, this process is voluntary for all parties.

Annual report

The Ombudsman must produce an annual report: section 21AX(1).

The annual report will include the nature and number of complaints overall and by higher education provider: section 21AX(7)(a)&(b).

The annual report will include the details of any recommendations made and actions in response to those recommendations: section 21AX(7)(e)&(f)

The annual report will set out details or trends in complaints, any broader issues that arise from investigations, and any improvements that could be made to complaint handling: section 21AX(7)(k).

Conclusion

The National Student Ombudsman is 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.

The subjective element of the Ombudsman’s operations, with compliance with the law not a defence against a complaint, is also concerning. If this bill passes, it will continue the erosion of the rule of law in this sector, seen in how funding agreements are used and the broad, unconstrained powers to set caps on international students – unless the Senate can do its job and put limits on ministerial capping discretion.

None of this is to deny that students have legitimate complaints about how higher education providers conduct themselves. But with this government ramping up costs, with changes to industrial relations and extensive new compliance provisions (including this bill), while slashing revenue from international students (inevitable due to migration changes whatever the fate of the caps), the ideal student experience is not possible.

We are in a world of trade-offs. How these are made should not be overly driven by those who complain the most, or by an Ombudsman who will only ever have a narrow perspective on how higher education providers operate.