With so much going on in higher education policy at the moment, the National Student Ombudsman legislation has not received much attention. But university submissions to the Ombudsman bill Senate inquiry raise important issues. I also put in a submission.

Academic judgement versus academic matters

University submissions make similar academic freedom objections to the bill as one of my blog posts on the National Student Ombudsman.

One issue is the scope of ‘exercise of academic judgement’, which is an ‘excluded action’ that the Ombudsman cannot investigate. The bill’s explanatory memorandum seeks to distinguish ‘academic judgement’ from ‘academic matters’, such as claims for special consideration and discipline for academic misconduct, which it thinks should be within the Ombudsman’s jurisdiction.

The QUT, Monash, University of Melbourne, ATN, Gof8, UA, UTS and UQ submissions all raise concerns about this aspect of the bill. As UQ says:

“…academic misconduct will almost always involve academic judgement. This is likely to create confusion on behalf of complainants in respect of what matters can and cannot be complained of to the NSO, and difficulties for the NSO in ascertaining which complaints about actions ought to be excluded.”

Removing the academic judgement exception by legislative instrument

The legislation gives the minister the power, by use of a legislative instrument, to make an issue of academic judgement – and not just academic matters – reviewable by the Ombudsman. Several submissions object to this part of the bill.

The erudite Monash submission argues: “to allow the Executive Government of the Commonwealth to override primary legislation made by the Parliament via a ‘Henry VIII’ clause’ of this kind is to invert a fundamental constitutional principle.”

QUT says: “…we argue in the strongest terms that there is no case for political interference in matters of academic judgement.”

QUT also raises concerns about the tension between this bill and existing legislated academic freedom requirements, which include the threshold standards and the HESA 2003 requirement to have an academic freedom policy.

Tensions between government policy and the Ombudsman’s role

The academic freedom scenario raises the issue of whether the Ombudsman should be able to recommend changes in government, as well as higher education provider, policy.

As my most recent post on the international student caps bill noted, it effectively mandates appalling treatment of international students, such as cancelling their enrolment at any time up to their course start date.

It’s hard to think of more clear-cut grounds for student complaint, yet under this bill the Ombudsman’s criticisms would be of the provider’s processes rather than the underlying legal problem.

Time limits on complaints

In my submission I compared the powers of the National Student Ombudsman with those of the Queensland Ombudsman (chosen because it has the best statistics on higher education complaints, which are transcribed in my submission).

In Queensland a complaint has to be lodged within a year of the action (or inaction) being complained about. The National Student Ombudsman has no time constraint and allows former students to complain.

While it includes much broader functions, politically this bill is driven by the experiences of students who have suffered sexual assault or harassment, with the bill including unusual ‘restorative engagement’ processes. The absence of a time limit is presumably intended to give them an opportunity to seek redress for past wrongs.

As the University of Melbourne submission points out, however, “it would be sensible to exclude some categories of historical actions (for example, course administration and teaching provision and facilities) to ensure the Ombudsman’s resources are targeted and prioritised appropriately.”

They have a point. Under this bill, I could lodge a complaint against Monash University for deficiencies when I was a student there in the 1980s. I recall a subject where the reading guide did not materialise until a few weeks into the course (‘course administration’). The Ombudsman could dismiss my complaint on the grounds that it was ‘frivolous, or vexatious, or was not made in good faith’. But it would be simpler to say that it is too late to do anything about it. The academic responsible died years ago; Monash’s policies and practices today are different.

Bureaucratic overreach

In my submission I agree that there is a role for a national student ombudsman. While most students already have access to some kind of ombudsman, domestic students in private higher education providers do not. A national ombudsman would provide a more comprehensive service. Over time, a national student ombudsman could develop expertise in higher education. This is probably lacking at the state level, where public university complaints are only a small proportion of the overall ombudsman caseload.

But this bill suffers from this government’s characteristic bureaucratic overreach. The problem is not just the weak academic freedom provisions or the potential to waste time on ancient grievances. It is that the scope of the bill is too broad. Rather than being limited to reviewing ‘administrative action’, the typical scope of a state ombudsman, the National Student Ombudsman can review any action, other than an excluded action (such as the exercise of academic judgement).

This takes the National Student Ombudsman into issues that are essentially policy matters about how a higher education provider uses its resources. Matters of teaching provision and facilities, including according to the bill’s explanatory memorandum the ‘sufficiency of staffing’, fall within the Ombudsman’s power to make recommendations for change.

The problem with this is that the Ombudsman’s recommendations will be based on one or a small number of complaints, with only a very limited understanding of the trade-offs involved in providing a remedy.

Universities have to work within their budgets. They cannot do everything they would like to do or what some students might expect.

The trade-offs will only get harder in the coming years, as the government slashes (international student caps) or diverts (40% of amenities fee money) university revenue while ramping up bureaucratic costs, including the Ombudsman legislation.

While the Ombudsman might solve problems for some students, its recommendations could leave other students and university staff worse off.