The Queensland Court of Appeal has confirmed universities' power to discipline conduct that could amount to a criminal offence: Y v The University of Queensland & Anor [2020] QCA 2016.

Summary

The Queensland Court of Appeal has confirmed that universities can discipline students that engage in misconduct that could amount to a criminal offence if the conduct was separately proven before a Court exercising criminal jurisdiction. However, the Court of Appeal has given the sector a timely reminder of the challenges of ensuring procedural fairness in student disciplinary proceedings involving such conduct.

Universities can expect to have their disciplinary decisions subjected to judicial scrutiny if they fail to ensure that their internal processes are suitable for conducting the necessary factual enquiry to arrive at a finding of misconduct in cases of this kind.

The University's appeal

Lyons SJA had determined that the Disciplinary Board of The University of Queensland did not have jurisdiction to consider and determine a particular allegation of misconduct against a student under the University's policies and procedures. Lyons SJA considered that in truth the Disciplinary Board was being asked to consider and determine an allegation of a serious criminal offence of a sexual nature, and that the University's governing body had limited the Disciplinary Body's jurisdiction in relation to such allegations.

While the University's appeal was ultimately dismissed on other grounds (discussed below), the Court of Appeal recognised that the question raised by the University's appeal had potential importance for cases beyond the present one, and the question should be considered. And on this question of importance for the sector, the Court of Appeal agreed with the University.

Jurisdiction to deal with alleged conduct that could amount to a criminal offence

In particular, rather than confining the jurisdiction of the University's disciplinary bodies, the Court of Appeal considered that the University's relevant policies and procedures acknowledged that the University has no jurisdiction to determine criminal responsibility, and that the University would not make findings in the terms of criminal responsibility in the course of deciding whether there had been certain breaches of its rules, policies and procedures. Instead, conduct which involved the commission of a criminal offence might constitute 'misconduct', and to the extent it did would then be within the jurisdiction of the University's disciplinary bodies (see [86] to [87] of the judgment).

This aspect of the Court of Appeal's judgment removes any doubt about the power of universities to deal with such conduct (subject to its own statutes, policies and procedures). As stated in our earlier alert, in addition to its duty of care to its students and staff, it is a requirement of all universities to promote and foster a safe environment for its students and staff to keep their registration as a university in good standing: see the Tertiary Education Quality and Standards Agency Act 2011 (Cth) and the Higher Education Standards Framework (Threshold Standards) 2015 (Cth), [2.3]. Having and implementing policies and procedures which allow a university to respond appropriately to allegations of serious misconduct, including taking urgent interim steps to exclude a student from university land whilst a matter is investigated, is an important aspect of how a university promotes and fosters a safe environment for its students and staff.

Challenges ensuring procedural fairness in such cases

Notwithstanding the Court of Appeal's view that the University had jurisdiction to deal with such conduct, the Court considered Lyons SJA was rightly concerned by the prospect that such a serious finding might be made as the outcome of the student disciplinary process.

The Court of Appeal noted in obiter that the disciplinary process in question seemed unsuited in many respects to a factual inquiry of this kind, including:

• Y was not automatically entitled to have a lawyer present during the hearing (a lawyer could only attend with leave);
• it was unclear that Y would be given an opportunity to cross-examine the complainant, at least by asking her questions directly, rather than 'through the decision maker';
• the decision making body would be comprised of persons, none of whom need have any legal training.

Against that background, the Court considered it was far from certain that Y would have received procedural fairness in the hearing had it proceeded as was apparently proposed (see [88] of the judgment).

Universities should be alert to this concern raised by Lyons SJA and the Court of Appeal. While universities may have jurisdiction to deal with alleged conduct that could amount to a criminal offence if proven in a Court exercising criminal jurisdiction, Courts are likely to hold universities to a high standard in ensuring that students in this situation are afforded procedural fairness. Universities need to ensure strict compliance with the need to afford such students procedural fairness. As a practical matter, this is likely to involve ensuring that an appropriate decision-maker is appointed to hear and determine such allegations, and that they have the necessary powers under the university's policies and procedures to discharge the university's obligations in this regard. For some universities, this may involve amendments to their policies and procedures

Jurisdiction to discipline former students

By the time the appeal was heard and determined, Y was no longer a student of the University, having graduated between the determination at first instance and the hearing and determination of the appeal.

Having regard to the University's relevant policies and procedures, the Court of Appeal considered that they provided several indications that the disciplinary process could not be imposed upon someone who is no longer an enrolled student. On this basis, the Court of Appeal dismissed the University's appeal against the order enjoining the University from proceeding further against Y (see [70] to [71] of the judgment).

The Court of Appeal did not articulate a general principle about the power of universities to discipline former students. This aspect of the decision was based on the Court's construction of the University's policies and procedures, and the Court noted that the University's assertion that it could discipline Y as a former student was made more difficult by the absence of a demonstrated contractual or statutory provision which might indicate that a former student remained subject to this process (see [47] – [58] and [70] of the judgment).

The Court commented that the result is unremarkable, when the stated purpose and objectives of the policies are considered (see [70] of the judgment). We agree. Student disciplinary proceedings by their nature regulate a student's status as a member of the university. A university is entitled to regulate its own membership, including to exclude from that membership someone who by their conduct adversely impacts the experience of other members of the university or otherwise is engaging in conduct that threatens the safety and wellbeing of the university community generally. While former students are often considered members of their university, it is less clear why a university would seek to subject a former student to its disciplinary processes in that context, unless the student sought to re-enrol in the future.

Implications of the decision for staff disciplinary processes

The Court of Appeal's decision is focussed on the interpretation of the University's relevant policies and procedures in this particular case and it did not consider staff disciplinary processes. However, there are parallels between the issues considered in this decision and issues which might arise in relation to contested staff disciplinary processes.

Staff disciplinary processes often consider allegations that, if proven, may amount to a breach of the criminal law. In the sector, these disciplinary processes are usually contained in enterprise agreements as well as in policies and procedures. It is also common for these instruments to adopt a definition of 'serious misconduct' that includes intentional conduct that is inconsistent with the staff member's ongoing employment, including conviction by a court of an offence that constitutes a significant impediment to the staff member (or their colleagues) performing their duties.

Despite the outcome in this case, we expect Courts and Tribunals will still be sensitive about universities investigating and making findings of misconduct that would amount to a serious criminal offence if proven in Court exercising criminal jurisdiction. The decision suggests that the focus of any inquiry should be on whether there has been a breach of the relevant rules, policies or procedures. It leaves open the possibility that a disciplinary process may be successfully challenged in the future on the basis that it was not suitable for a particular finding to have been made in that context.

It is therefore important for universities to ensure that investigations into allegations against staff members are carefully managed, and investigators are directed not to investigate charges or make findings of criminal conduct. In most cases an initial fact finding investigation will be appropriate, followed by a misconduct process focussed on whether there has been an alleged breach of the University's code of conduct or dereliction of the staff member's duties, and the investigation of a charge or finding of criminal conduct will not be necessary or consistent with the university's disciplinary processes.

We would be pleased to provide assistance if you are concerned about your university's student or staff disciplinary procedures in light of the decision, including in particular to ensure that procedural fairness can be assured in such cases involving misconduct that could amount to a criminal offence if proven in a court exercising criminal jurisdiction.

Please reach out to your client relationship partner, or a member of our national higher education team, if you would like to discuss.