My first post on the higher education gender-based violence bill and its draft code looked at how gender-based violence is defined and the broad obligations placed on higher education providers and their staff and students.

This post examines procedures for student victims of gender-based violence and for the accused perpetrators. The rules also apply to staff, but as there are existing laws on these matters for workplaces I will focus on students. There is a 2024 summary of university policies and practices on responding to sexual violence, but I have not attempted to compare them to the code.

The code includes reasonable measures to support student victims and, to a lesser extent, accused respondents. I am not convinced, however, that the latter will face a fair process in more serious cases if universities rely on the code alone to guide their policies.

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

Student victims/disclosers

A common criticism of universities has been inadequate responses to student complaints regarding sexual misconduct. In a 2021 student survey on sexual harassment and assault most victims did not report their experience to the university, but of those who did over 40% were dissatisfied. The code includes an extensive list of things that providers must do in these cases: code section 4 (all legal references unless otherwise stated are to the draft code).

These required provider actions include implementing measures to ensure the safety of the discloser, prioritising urgent access to support services, minimising how often the discloser must repeat their story, providing translation and interpretation services where necessary, implementing academic adjustments, and where necessary discussing the investigation and disciplinary processes: code section 4.6.

The discloser must have the opportunity for a support person to be present: code section 5.11.

The investigation

There is a distinction between a disclosure of an incident and a formal report. The latter requires the provider to consider taking steps beyond providing support services: definitions section of the code. A formal report leads to an investigation: code section 5.8. While the victim/discloser’s views must be taken into account before proceeding to an investigation, the provider may investigate where necessary for the safety of other students or staff: code section 5.7.

An investigation is needed after a formal report even when there is no link to the provider other than the discloser being a student: code section 5.8. In the 2021 student safety survey the perpetrators in over 40% of sexual harassment cases and about half of sexual assault cases were either unknown or a person who was not a student or staff member. It’s not clear how far an investigation can go in these cases unless the police get involved.

The provider must consider the safety of students and staff in determining the scope of an investigation when the perpetrator is not a student or staff member of the provider: code section 5.9.

I am not clear on why safety is only an issue in this circumstance. If there are reasonable grounds for believing that a perpetrator would react violently to an investigation it would breach OHS rules to put investigators at risk in this way.

The provider must not require disclosers to provide physical evidence: code section 5.12.

The code does not cover other evidence gathering, such as witnesses, university CCTV, swipe card access to buildings, use of university email or other systems. The possibility of witnesses is indirectly recognised through ‘Ethical bystander’ training: code section 3.1(g).

There is nothing in the code about a standard of proof. In my view this can reasonably vary depending on what outcome is sought, from ‘believe the victim’ if all that is requested is support services to ‘on the balance of probabilities’ if suspension or expulsion is sought.

Police involvement

The bill and the code both lack protocols for when police investigate the same conduct as the university.

On a limited examination of university policies internal investigations may be suspended when the police are involved. This may make the code’s deadlines impossible to meet. There is provision for the provider’s ‘higher education principal executive officer’ (the VC at unis) to grant extensions ‘where required’: code section 5.17. However a police request to let them investigate first would seem like an expected situation that should not require higher-level decision-making by the provider (although VCs may want to be in the loop if a serious criminal offence that occurred on campus is being investigated).

However, a criminal conviction for the respondent on the same matter should be sufficient evidence for the university not to require a further investigation of its own.

Student perpetrators/respondents

Alleged perpetrators need not be informed of all claims made against them. However, they must be told if the disclosure moves on to an investigation: code section 5.10.

Respondents like disclosers are entitled to support including academic adjustments: code section 4.7.

The respondent must have the opportunity for a support person to be present: code section 5.11.

The respondent can get prioritised access to a psychologist or counsellor: code section 4.7

There is no mention of the respondent being given the opportunity for legal representation if they are accused of an action that may also be a criminal offence. However the reporting rules envisage that a legal representative may have been present: code section 6.12(b)(4). Presumably provider policies can deal with this matter.

As for disclosers the provider must not require respondents to provide physical evidence: code section 5.12.

After an investigation – agreed outcome

An investigation does not necessarily lead to formal disciplinary processes.

The discloser and respondent can agree on a ‘resolution’ of what should happen: code section 5.13(a).

There is also the option of ‘safety measures’ being implemented without further action: code section 5.13(b). I’m not sure what this involves. Perhaps agreement that the respondent desist from the behaviour(s) that caused the complaint or measures to avoid the discloser and respondent crossing paths.

After an investigation – disciplinary proceedings

The respondent must be given procedural fairness in disciplinary processes. This includes that the decision must be made in accordance with the rules against bias and the respondent must have access to any prejudicial material that the decision maker may take into account: code section 5.18 and definitions.

The code does not specify criteria to be a decision maker. Presumably the rule against bias would prevent anyone who worked with the discloser or the respondent, or worked on the investigation, from being the decision maker.

A provider must impose sanctions proportionate to the conduct substantiated, including suspension and expulsion: code section 5.15.

Unless requested otherwise, the discloser must be notified of outcomes of disciplinary processes, including reasons. The discloser must be told that they can complain to the National Student Ombudsman if dissatisfied: code section 5.21.

There is reference to the respondent being notified of outcomes (code section 5.22) but not a direct requirement to provide reasons for the decision.

Non-disclosure agreements are not allowed unless the discloser requests it: code section 2.8

Formal reports including disciplinary processes for perpetrators must be resolved in 45 days: code section 5.15.

Perpetrator/respondent appeals

The code itself does not require respondents/perpetrators to be given the right to appeal. However at institutions with HELP funding I believe they would have this right under section 19-45 of the Higher Education Support Act 2003 and at all institutions under the Higher Education Threshold Standards 2021.

If there is an appeal the discloser/victim needs be informed (code section 5.23) and the appeal completed within 20 business days: code section 5.24. Other appeal details will depend on the policies of each university.

There is no parallel requirement to code section 5.21 for the discloser that the respondent must be informed that they can complain about their treatment to the National Student Ombudsman. However, under the NSO legislation a student can complain about any action of a higher education provider other than an excluded action. The list of excluded actions does not include appeals against disciplinary decisions: section 21AD of the Ombudsman Act 1976.

Conclusion

The code includes processes for resolving cases by agreement or with ‘safety’ measures that are not overly onerous for either party. This is good. But in more serious cases, where the respondent faces suspension or expulsion from their education provider, I have reservations about the code’s approach.

While university policies and practices may at least partly remedy some of the code’s omissions and deficiencies, the code’s processes as stated could leave respondents feeling like they have faced a kangaroo court – no requirement to produce physical evidence, no requirement on other evidence gathering, no specified standard of proof, no requirement to provide the opportunity to seek legal advice, no express requirement to notify the respondent of reasons for decisions, no requirement to inform the respondent of internal appeal rights and no requirement to tell respondents that they can complain to the National Student Ombudsman about how they have been treated.

On my reading, the code also needs more work on cases where physical violence has already occurred or there is a reasonable concern that the respondent may become violent. There seems to be some missing content on dangers to university investigators in these cases; mentioned when the respondent is not a student or staff member but silent if they are. In cases of actual or potential violence police involvement is likely to be needed, but the code is not clear on how police investigations or criminal trials should affect processes and timelines.