Safeguarding Students: The Introduction of the National Student Ombudsman
On 11 September 2024, the Universities Accord (National Student Ombudsman) Bill 2024 was introduced, which will establish an independent National Student Ombudsman (Ombudsman). The recommendation for a sector-specific Ombudsmen is part of the Education Minister’s Action Plan to address gender-based and sexual violence in higher education settings.
In addition to managing complaints around gender-based violence, the Ombudsman will also manage complaints where students have been subjected to racism and homophobia. While the legislation has not yet passed, it is intended that upon passing, the Ombudsman will be operational from 1 February 2025.
In addition to the Ombudsman, a National Higher Education Code to Prevent and Respond to Gender-Based Violence (National Code) will also be developed. This National Code will establish the rules and regulations that a Higher Education Provider (Provider) will be obligated to abide by to ensure they embed an approach which prevents and responds to gender-based violence.
Role of the Ombudsman
Students who experience sexual assault and sexual harassment in higher education settings will be able to make a complaint to the Ombudsman in relation to actions or inactions of their Provider. The Ombudsman will review the complaint and can:
- Determine whether actions taken by the Provider were unreasonable, unjust, oppressive, discriminatory or wrong;
- Respond to a complaint if there are unreasonable delays, or the Provider is acting unreasonably;
- Recommend the Provider take steps to resolve the complaint;
- Promote best practice complaints handling;
- Share information with regulators; and
- Provide restorative engagement processes between the complainant and the Provider and offer alternative resolution processes.
The Ombudsman will have investigative powers and will also have the power to compel any person or Provider to provide information. In addition to receiving and investigating complaints in relation to gender-based violence, the Ombudsman will have the power to investigate student safety and welfare issues, course administration issues, teaching provision and facility issues, disciplinary processes and reasonable adjustment issues.
The Ombudsman will not accept complaints in relation to academic judgements, actions relating to a VET courses or actions relating to employment.
The Ombudsman will accept complaints made by current, former or prospective students, as well as complaints made on behalf of another person, anonymous complaints, group complaints, and historical complaints.
Safeguarding Obligations on Providers
The 2021 National Student Survey found that one in 20 students were victims of sexual assault and one in six had been subjected to sexual harassment since commencing university. In addition, one in two students who had made a complaint, felt as through they were not being heard when they made
a complaint about sexual violence. Women, LGBTQIA+ persons and First Nations persons report higher rates of sexual violence, and a majority of the reports refer to men being the perpetrators.
Providers have an obligation to ensure students and staff feel safe when in higher education settings. Gender-based violence impacts a person’s wellbeing, physical and mental health, as well as their academic achievements. Students who experience gender-based violence are more like to withdraw from their studies or show a decline in performance and increase in absenteeism. Staff who experience gender-based violence at higher risk of resigning from their position.
Providers have obligations to ensure the safety of students and staff within their organsation and must ensure they:
- Promote safety and foster an environment free from violence;
- Comply with their legislative duties to safeguard against harm;
- Develop polices, practices and frameworks which promote a culture free from sexual violence;
- Develop preventative measures to protect students and staff from violence;
- Act promptly when disclosures are made;
- Protect the legal rights and interests of students and staff and ensure procedural fairness;
- Provide person-centred reporting pathways and processes with are easily accessible;
- Provide trauma-informed support services; and
- Provide appropriate sanctions on perpetrators.
How Should Providers Prepare for These Changes?
Providers can start preparing for these changes by conducting a review of existing policies, procedures, and practices to ensure that exiting frameworks promote the overarching goals of the Education Minister’s Action Plan. Providers should review current complaints processes and ensure that there are appropriate and accessible pathways for students and staff to raise concerns for their safety and wellbeing.
Providers must properly investigate any concerns raised and support students to report their concerns to external organisations such as Police. In addition, Providers should review what supports exist for students and staff who have experiences gender-based and sexual violence.
Providers should also offer training and ensure there is access to up-to-date information so that they are aware of their obligations and reporting processes. Providers should also ensure that updated policies, procedures, and practices are made readily available so that students and staff are aware of the implementation of the Ombudsman and National Code.
How can Safe Space Legal Help?
The team at Safe Space Legal have extensive safeguarding experience. We have worked with many organisations across Australia to ensure they are meeting their legal obligations and frequently conduct independent safeguarding investigations. Safe Space Legal provides the following services to ensure organisations meet their legal obligations:
- Conducting specialist independent investigations into sexual offences, sexual harassment and other types of misconduct that impact upon students’ safety and wellbeing, which are compliant with sector specific obligations.
- Providing policy audits and developing safeguarding policies, procedures, and complaint handing processes.
- Providing root cause analysis to identify gaps in policy and/or practice which put organisations at risk of non-compliance with their sector-specific obligations.
- Delivering safeguarding training to ensure organisations are aware of their sector-specific requirements and obligations.
- Ensuring that complaints handling and reporting processes are compliant with legal obligations.
- Assistance and support to respond to allegations of abuse and harm.
- Provide expert legal advice on risk mitigation.
Contact office@safespacelegal.com.au or call (03) 9124 7321 to organise a complementary discussion in relation to your organisation’s safeguarding needs.