Category: Crime and punishment

Gender-based violence legislation, Part 3: Reporting and penalties for higher education providers

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The first post in this series outlined the meaning of gender-based violence and processes that apply to all higher education staff and students. The second post looked at processes when a complaint of gender-based violence is made.

Legislative references, unless otherwise specified, are to the Universities Accord (National Higher Education Code to Prevent and Respond to Gender‑based Violence) Bill 2025. The draft code is here; it uses the language of ‘standards’ but I will refer to code ‘sections’ when noting a specific rule or requirement.

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

Reporting

The code comes with very extensive reporting requirements. All the different things providers must report on run for four pages in the code: standard 6, pp. 17-20.

The code stresses the role of the data collected on programs to reduce gender-based violence: code section 6.1.

The Secretary can disclose information received as part of this reporting: sections 43 and 44.

The Secretary must produce an annual report to be included in the Department’s annual report (which is usually tabled in Parliament in October): section 47.

Given the Department of Education’s chronic failure to release higher education data in a timely way a statutory requirement to publish an annual report is good.

While the Department’s annual report operates on a financial year basis it would be helpful to produce the data on a calendar year basis as well, to reflect the operating cycle of universities.

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Gender-based violence legislation: Part 2, Processes for victims and perpetrators

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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.

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Gender-based violence legislation: Part 1, Definitions and requirements for all higher education providers, staff and students

Andrew NortonLeave a comment

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).

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The proposed law against commercial cheating and the Constitution

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Successive Commonwealth governments have been creative in finding ways to by-pass the Constitution. That has been very necessary in education, which was originally intended to remain a State responsibility.  The Commonwealth has no direct power to legislate on an education topic other than in the territories. This creates legal issues for the Commonwealth’s attempts to ban commercial cheating. Draft legislation was released at the weekend.

The Commonwealth’s main vehicles for education policy have been section 96 tied grants to the States (no longer used for higher education, but still used for school and vocational education), the section 51(xx) power to legislate on foreign, trading and financial corporations (which relies on universities being trading corporations; this power could collapse if they went back to full public funding) and section 51 (xxiiiA), the ‘benefits to students’ power, which is the main legal basis of Youth Allowance, the Commonwealth Grant Scheme, and HELP.

Because the Commonwealth can fully legislate for the territories, the draft bill would be effective in the ACT and the Northern Territory. But in the states the legal situation is more difficult.

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Does higher education reduce crime?

Andrew Norton5 Comments

One argument made for higher education – at least when arguing for more funding – is that it helps reduce crime. A visiting OECD official recently made the reduced crime claim for higher education, citing Walter McMahon.

Graduates are likely to have quite low conviction rates – I have not been able to find precise statistics, but in 2009 only 14% of 25-34 year old prisoners had completed year 12, compared to 63% of the general population in 2006.

But it seems more plausible to me that graduates are people who were always at relatively low risk of offending, regardless of whether or not they pursued higher education. This low risk would be a function of better socialisation, and the ability to earn a reasonable income without breaking the law. Education is likely to have whatever preventive effects it is going to have well before higher education.

The broad historical trends would also seem to count against any straightforward link between higher education and crime. Australia’s crime statistics don’t lend themselves to easy long-term time series, but crime and education both escalated significantly from the 1970s. The figure below shows crime and higher education attainment increasing from the mid-1990s to around the turn of the century, before crime started trending down again (as also occurred in other countries).


Sources: Education and Work, Australian Institute of Criminology

My theory would be that a third factor at least partly explains both trends, though I think crime is a more multi-factor phenomenon than higher education. The collapsing labour market opportunities for men with little education over the last 30-40 years made both crime and higher education more profitable relative to the alternative of welfare/insecure jobs. So crime and higher education both increased.

But there is no direct relationship between crime and higher education, and increasing the latter will not decrease the former.