Sexual misconduct investigations and criminal offences

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Universities need disciplinary processes to address misconduct allegations

A university case highlights the need to investigate sexual misconduct allegations regardless of the criminal process.

In January 2020 I wrote a short piece on this website on the case of Y v University of Queensland [2019] QSC 282. This is a case in the vexed world of university student sexual misconduct: where disciplinary proceedings can and sometimes do intersect with the criminal law.

That case was subsequently taken to the Queensland Court of Appeal, whose decision was handed down in October 2020 (University of Queensland and Anor v Y [2020] QCA 216.

What’s Y’s case about?

Y, a student, obtained judicial review in the Supreme Court of a decision of the University of Queensland (and the Disciplinary Board of the University of Queensland).

After the injunction was granted by the primary judge, the University appealed to the Court of Appeal. But Y graduated before the appeal could be heard.

Was the primary judge right to grant the injunction? And could the disciplinary matter resume given that Y was no longer a student of the University?

The Court of Appeal

1. The student had graduated – it was too late.

The Court of Appeal agreed with Y that he was no longer subject to the disciplinary processes of the University, and that the appeal by the University should therefore be dismissed.

This conclusion was based on an analysis of the University’s disciplinary rules (in the form of policies and procedures); and consideration of other disciplinary cases (including disciplinary cases involving public servants, solders, architects, engineers and doctors).

The Court found that the policies were not worded in such a way to give the University jurisdiction to discipline people who were no longer students. One of the reasons for this was that the applicable “penalties” only applied to students.

Take away?

One key take away for Universities or other institutions writing disciplinary proceedings, is to be as clear as possible about the jurisdiction that is being asserted: if it is sought to continue disciplinary proceedings against former students (or former employees, etc) then the language of the disciplinary proceedings needs to be very clear.

In saying this, I am not commenting on whether there can ever be jurisdiction to discipline people who are no longer studying with or engaged by a University or other institution. That is a question for another analysis.

2. The University could have disciplined the student if he was still studying there.

The University succeeded in arguing that the primary judge should not have granted the injunction preventing the disciplinary process.

The primary judge had concluded that the University “only has jurisdiction in relation to criminal acts of a sexual nature where the alleged offence is proven (in Court)” (at para [82] of the Court of Appeal judgment, quoting from the primary judge at para [68]). The Court of Appeal disagreed with her.

The Court of Appeal cited the High Court in the case of Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352. The High Court (a majority of five judges) in that case found:

“…it is not offensive to principle that an administrative body is empowered to determine whether a person has engaged in conduct that constitutes a criminal offence as a step in the decision to take disciplinary or other action.” (at [33]).

In Y’s case, the Court of Appeal found that the University could not decide criminal responsibility, but it could determine whether sexual misconduct had occurred, even if no criminal offence had been prosecuted and proven.

Take away?

A University can discipline a student for misconduct which might also amount to a criminal offence.

3. Natural justice warning.

Finally, the Court of Appeal was concerned that procedural fairness be accorded in the handling of misconduct cases which might also constitute potential criminal offences. Should the student be allowed to have a lawyer? Should their lawyer be allowed to cross examine a complainant?

These things were not answered by the Court of Appeal; it was enough that it found that jurisdiction to continue the disciplinary proceedings would have existed (if the student had not graduated).

But these issues may require analysis by other Universities and Tertiary Institutions nationally.

Take away?

Universities and other Tertiary Institutions – indeed any potential disciplinary body operating in a legislative framework – should review the way in which procedural fairness is accorded in disciplinary proceedings, particularly where criminal processes might also arise from the same events that led to the disciplinary proceedings.

PS Now, in March 2021, the case of the Attorney General requires consideration.

In January 2020 I wrote for the previous version of this article:

“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?”

How is the Prime Minister supposed to work out what to do?

In March 2021, the Prime Minister of Australia has been asked whether he will arrange for an inquiry into allegations of rape made against our Attorney General.

Sadly, the woman who made the allegations died last year, and the NSW Police have recently announced that they will not proceed with any criminal investigation into the matter.

Prime Minister Scott Morrison said a few days ago at a press conference:

““It is the police, in a country where you’re governed by the rule of law, that determine the veracity of any allegations of this nature… It is the police. My office, I do not have the people or others who are trained or competent or authorised to investigate matters of this nature.

“The police are the ones who do that and the police have had these matters referred to them, the individual involved here has vigorously rejected these allegations, and so it’s a matter for the police and in my discussions with the commissioner, there was nothing immediate that he considered that was necessary for me to take any action.”

I disagree with the Prime Minister. I do not understand why he made these comment. The rule of law is not confined to the criminal process. One only has to look at the OJ Simpson case to understand this.

Inquiries and disciplinary proceedings involving potential criminal matters in many walks of life occur without criminal proceedings having been even commenced, let alone concluded to a successful conviction.

As Prof Kim Rubenstein wrote in the Guardian:

“If the Prime Minister really cares about the Rule of Law, he will hold an inquiry.”

PS. Since writing this article on 11 March 2021, the Prime Minister has now obtained legal advice from the Solicitor-General. This may affect whether he decides to take any action regarding Christian Porter’s ongoing role as Attorney-General.

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