Legislation on ‘gender-based violence’ in higher education is back in Parliament. Its principal purpose is to provide a legal foundation for a National Higher Education Code to Prevent and Respond to Gender-based Violence. This will be a legislative instrument made after the legislation is passed, but the minister has released its expected contents.

The code is scheduled to start on 1 January 2026 for universities and 1 January 2027 for other providers.

This post looks at the definition of gender-based violence, extension of the policy beyond higher education providers, and policies that will affect all staff and students. A second post looks at procedures for victims and perpetrators of sexual harassment or assault. A third post looks at reporting and penalties for higher education providers (apologies, but this is all much briefer than the 75-page original; 45 pages in the bill and 30 in the code).

Update 20/10/2025: The enacted legislation is here. The enacted code is here.

What is gender-based violence?

According to the bill, ‘gender‑based violence means any form of physical or non‑physical violence, harassment, abuse or threats, based on gender, that results in, or is likely to result in, harm, coercion, control, fear or deprivation of liberty or autonomy’: section 5 (legislative references, unless otherwise specified, are to the Universities Accord (National Higher Education Code to Prevent and Respond to Gender‑based Violence) Bill 2025).

This is a complex definition with three parts – 1) the acts to be prevented; 2) some element of cause or motive and 3) the consequences/the victim’s reaction.

For (1), the acts to be prevented, the core of it is physical violence, harassment, abuse and threats. The ‘any form of…non-physical violence’ covers activities listed in the bill’s explanatory memorandum (EM, p. 17) such as stalking, monitoring or coercive control (in the 2021 student safety survey ‘staring’ was the most common form of reported sexual harassment; at a guess a single case of staring would not fall inside this definition but repeated instances might).

For (2), the motive or cause, the EM says that ‘gender-based violence is a complex, society-wide problem arising largely from strongly embedded and systemic social and cultural norms, practices, structures and attitudes based on gender, and results in harm. Gender-based violence relates to power imbalances in society and the way people are not treated equally because of gender.’ (p. 17).

In specific cases, however, the EM says that providers are not required to ‘assess or otherwise prove a causal link to gender in cases of violence’. This complexity arises from the bill’s dual purpose. It wants to improve university handling of specific complaints of physical violence, harassment, abuse and threats. Having to prove a specific underlying social or cultural cause would create a larger obstacle to a finding in the victim’s favour than even in the criminal law. The gender-based violence element is there for a second purpose of the bill, to pressure universities to do more to combat underlying attitudes that can lead to physical violence, harassment, abuse and threats with a gender angle.

While the EM says that most gender-based violence is committed by men against women, it can also affect ‘men, boys, and people of diverse sexual orientations, gender identities, or gender expressions’ (p. 17). Again this seems to be about ensuring that all violence, harassment etc is within scope in specific cases, even if there is no plausible link to the specific gender norms being targeted in the educational parts of the policy.

The third part of the definition seems to require that there must be consequences or the likelihood of consequences from the perpetrator’s actions. This may mean, for example, that a student’s misogynistic social media rant not directed at any specific person is out of scope. It’s not clear whether there is a ‘reasonable person’ type test for subjective reactions like ‘fear’.

Which organisations are within scope?

All higher education providers are in scope but the bill tries to push its authority beyond them. Higher education providers are required to extend their gender-based violence policy to affiliated organisations, entities that conduct activities on behalf of the provider, or use or lease the provider’s land and facilities: code section 2.4

In standard 7 of the code there are extensive provisions specifically aimed at getting student accommodation providers indirectly in scope via associated universities. The problem the code attempts to solve here is that some accommodation providers are not ‘constitutional corporations’ under section 51(xx) of the Constitution, the head of power being used for this bill. There were earlier discussions of complementary state legislation to deal with this problem. This approach does not seem to have been pursued, for now at least.

Higher education provider governance

The bill gives the minister power, via the code, to require higher education providers to have ‘particular governance arrangements’ in place: section 17(2)(a).

In the draft code, providers must have on their governing body, or on a sub-committee that reports directly to the governing body, a person or persons with expertise in ‘student and staff safety and well-being’: code section 1.2.

The governing body must approve a whole-of-organisation prevention and response plan: code section 1.4(m).

Prevention and response plans

A prevention and response plan must address the factors that drive and contribute to gender-based violence: code section 1.4(c). In this, the plan must be informed by domestic and international evidence about the nature and extent of gender-based violence: code section 1.4(l).

The prevention and response plan will include a gender equality action plan: code section 1.4(g). These are already required under some other legislation, such as Victoria’s Gender Equality Act 2020, although on a quick examination this only applies to employees. The gender-based violence bill recognises the potential for overlap, stating that it is not intended to limit the operation of state or territory laws capable of operating concurrently: section 8.

The Secretary of the Department of Education (in practice the bureaucrats with delegated authority under section 48 of the bill) can prescribe the ‘manner and form’ of a ‘gender equality action plan’: code section 1.4(g). The Secretary can effectively rewrite a university’s plan by giving feedback with which the provider must comply: code section 1.12.

Higher education provider staff

The bill allows the code to regulate the hiring of staff to prevent and respond to gender-based violence: section 17(2)(c).

Staff will have to get a working with children check: code section 2.1(a). (I think this is already common).

Prospective employees and members of governing bodies will need to be asked whether they have ever been determined to have engaged in gender-based violence in previous employment, determined to have engaged in it by a legal process (which would come up in the working with children check), or whether they have ever been investigated for gender-based violence: code section 2.1(b).

This will be a case where ‘gender-based violence’ will need to be operationalised in ways that reflect recording practices in criminal law and other places where non-criminal findings or sanctions may be documented, such as HR departments.

A check that comes up with something on a prospective employee does not automatically lead to a prohibition on employment. The provider however needs to consider the risks: code section 2.1(c). If an allegation is substantiated against a current employee, it needs to be taken into consideration for promotion, recognition and reward: code section 2.1(d).

As part of onboarding and then each year staff will have to undergo ‘specialised education and training’ on responding to student ‘disclosures’: code sections 3.8 & 3.9. There are additional requirements on staff directly dealing with gender-based violence: code section 3.16.

Under the code definitions, ‘staff’ has a very broad meaning, that of ‘worker’ in the Model Health and Safety Act (which provides uniform definitions around Australia via state and Commonwealth legislation). That includes not just employees but contractors, sub-contractors, students gaining work experience, and volunteers.

This broad definition of staff will cause practical issues with universities unable to hire contractors who do not have working with children cards (because they don’t work with children) or refuse to undergo the required training.

Somewhat incongruously given the overall approach in the bill and the code, when administering the policy the Secretary of the Department is supposed to adhere to the principles of regulatory necessity and proportionate regulation: sections 10 to 13. It would be sensible to apply these principles more broadly, so that contractors who never or only briefly come to campus do not have to comply with the policy.

Higher education students

According to the 2021 student safety survey most sexual harassment or assault perpetrators are other students. Unlike staff, however, prospective students do not need to have background checks for criminal offences or disciplinary actions related to gender-based violence. This may be a concession to the practical and financial realities of getting 600,000 or so commencing students each year through this process.

Students must however receive ‘ongoing comprehensive prevention education and training’ that increase awareness and understanding’ on what gender-based violence is, the factors that drive and contribute to it including other forms of inequality and discrimination, power dynamics, respectful relationships, how to report issues, support services, and being an ethical bystander: code section 3.1.

I expect this will be implemented through compulsory modules, such as those universities already have (e.g. this one at Monash).

To be continued…

In the next post I will examine what happens when a student alleges gender-based violence.