Misconduct in universities

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Universities need to address sexual misconduct

Y v University of Queensland [2019] QSC 282 is an important case in the vexed world of university student misconduct, disciplinary proceedings, and criminal law.

What’s this misconduct case about?

Y, a student, sought judicial review of a decision of the University of Queensland to investigate Y. The student obtained an injunction from the Supreme Court of Queensland preventing the University’s misconduct investigation.

The Board had sent a notice of allegations to the student, and was ready to hear and decide those allegations. They were allegations of sexual assault, and the hearing was to be under the University’s Student Integrity and Misconduct Policy.

The Supreme Court restrained the Board from hearing the allegations. The Court found that the Board did not have jurisdiction.

The allegations were at least partly found to be allegations of criminal offences.

They were not just allegations of breaches of a sexual misconduct policy.

For this reason, the Court held that the University did not have jurisdiction to investigate the allegations.

How does this case affect your University or government employer?

It’s common for criminal acts, or allegedly criminal acts, to be part of a disciplinary investigation. Or part of the landscape of a disciplinary investigation. This can happen in the public service, or in a university, or anywhere, really.

You are an employer, or university, or some sort of regulator. But you are not the police, and you can’t lay criminal charges. How are you supposed to work out what to do?

Postscript March 2021

I wrote this piece in January 2020. At the time, I thought that the primary judge’s approach to the matter could not be correct.

As noted, the primary judge was concerned about the University’s ability to investigate sexual misconduct allegations which could also be the subject of criminal charges.

Yet disciplinary proceedings in all sorts of jurisdictions do that very thing.

In my experience, it is much more common for sexual misconduct to be treated as a public service disciplinary matter, or a student misconduct matter, than for it to be the subject of criminal proceedings.

Let alone successful criminal proceedings.

The University appealed to the Court of Appeal. The Court of Appeal’s decision, University of Queensland & Anor v Y [2020] QCA 216, is discussed in my later post here.

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