A medical student accused of serious sexual assault by a fellow student has successfully challenged an attempt by the Disciplinary Board of a university to hear and decide the allegations
- A final year medical student was notified by his university of allegations that he had sexually assaulted a fellow student during a clinical placement and that the university’s Disciplinary Board was going to hear and decide the allegations.
- The particulars of the allegations provided to the student stated that the decision makers would be considering whether the student had breached the university’s policies and not whether a criminal offence had been committed.
- The student sought to challenge this process by an application to the Supreme Court of Queensland for judicial review of the university’s decision to hear and determine the matter.
- The Court, in a detailed judgment, outlined the relevant sections of the various university policies, and significantly, Section 4.4 of the Sexual Misconduct Policy which stated:
“The University acknowledges that Sexual Misconduct may include criminal behaviours and be unlawful. The University does not have jurisdiction over criminal acts, but can take action in respect of breaches of its rules, policies and procedures.”
- The university argued that the Disciplinary Board was not determining whether any criminal offences had been committed, but rather whether policies had been contravened and that, even if the conduct alleged could amount to a criminal offence if proved in criminal proceedings, it did not mean the university did not have the jurisdiction to determine whether that same conduct amounted to a breach of the university policies.
- The Court found that it was clear from the particularised allegations provided to the student that the allegations were sexual assaults and that the Disciplinary Board was to hear and decide those allegations. The Court concluded that there could be no determination of whether the student had breached the university’s policies without first determining whether the acts had occurred as alleged, without consent. In the Court’s view the determination of whether the policies had been breached was inextricably linked to a determination of the issue of consent.
- The Court concluded that Section 4.4 of the Sexual Misconduct Policy and other university policies and procedures referred to in the judgement, meant that the university only had jurisdiction in relation to criminal acts of a sexual nature where the alleged offence was proven. In that scenario, the university’s jurisdiction would be limited to determining what penalty should be imposed as a consequence of the alleged offence having been proven.
Lessons learned
- This outcome – a university being precluded from following a disciplinary process in relation to a serious sexual assault complaint by a student – may be of concern to many in the tertiary sector. However, the facts of this case are unique and largely turn on the specific provisions of the university’s policies and procedures. No doubt as a result of this decision, tertiary institutions will be reviewing their own policies and procedures to see whether they contain analogous and potentially similarly limiting or prohibitive provisions.
- From an employment law perspective, although this case related to student conduct as opposed to the conduct of an employee, it does emphasise the importance of considering all relevant workplace polices and ensuring that allegations are drafted in line with those policies.
Y v University of Queensland and Disciplinary Board of the University of Queensland (20 November 2019)
