ANU Reporting Procedures Q&A:
What happens if I make a report about the behaviour of another student or staff member?
If your complaint is against another student, the University may review the complaint under the Discipline Rule. If your complaint is against a staff member the University may review the complaint under the misconduct provisions of the Enterprise Agreement. While investigating your report, the University will:
- take your complaint seriously;
- maintain confidentiality; and
- keep proper records of your report.
Does the University investigate all reported incidents?
The University investigates reports of misconduct of its staff or students that occur on campus. Staff and student misconduct on campus is governed by the University's rules and processes.
The criminal law applies to conduct within the University, the same as it applies to all other places. Some other forms of sexual assault, including rape, are criminal offences that are tried and punished in the court system.
How does the University decide if misconduct has occurred?
For the University to be satisfied that certain misconduct has occurred, the University will make a finding under the civil standard of proof also known as the balance of probabilities (which essentially means that it was more likely than not that something occurred in a certain way).
The criminal standard of proof, 'beyond reasonable doubt', requires a higher standard of proof - essentially that there is no alternative explanation for the conduct that is alleged to have occurred and is considered by courts that apply strict standards of evidence.
What penalties can the University impose?
The University can impose serious penalties in relation to either a staff member or a student's access to the University, including exclusion of students or the termination of a staff member's employment. The University cannot impose criminal punishments.
What happens if the police and the University investigate the same incident?
Where an incident occurs that is, or may later be, reported to the police there are limits on the ability of the University to complete an investigation. The University will always ensure the immediate safety of the victim but may not be able to conclude an investigation, pending the outcome of police enquiries.
The University is not a law enforcement body and does not have the expertise or authority to conduct investigations of criminal offences. It is only through police investigation that criminal law outcomes can be achieved.
The University must abide by laws just like any other person or organisation in Australia. As such, any statements made to the University by the accused person are not made under protections available to an accused person in a criminal process. The police can obtain statements made by the accused person to the University and produce them in evidence in any later criminal trial. Hence, if the University demands from the accused person details about their version of events, this material may be used in a later criminal trial.
In these cases, the University, after ensuring the safety of students, suspends the conduct of its investigation pending the outcome of the police investigation.
Police may charge and prosecute the accused person or police may decide that the standard of evidence required for a criminal prosecution is not sufficient and decline to prosecute. Where the position of the police is known the University can determine how to progress its own investigation.
Can an anonymous complaint be made?
For the most part, sexual harassment or sexual assault involves two or more people. It is not possible for the accused person to respond to an allegation that they have engaged in sexual harassment or sexual assault unless a report has been made.
Where the University receives a number of reports about the actions of a particular student or staff member and where the students making the allegations wish to remain anonymous, the University may be able to consider taking action.
The University would investigate situations that are enabling a particular student or staff member to engage in inappropriate conduct so that measures are put in place to reduce the likelihood of further incidents occurring.
What if I want to let the University know but I don't want to make a formal report?
Seeking support from providers such as the ANU Counselling Centre, the Dean of Students or student assistance officers can help clarify the options open to you.
The options include both formal processes (through the police or using the University's formal grievance process) and informal processes. The Dean of Students can advise what informal approaches could be applied in your situation. These approaches are generally focused on your ongoing personal safety.
It is the student's decision to determine if a formal grievance is lodged. No time limit applies for making complaints although there are potential limitations on action that can be taken by the University if evidence has been lost or destroyed with the passage of time, or one or both parties have left the University.
Can former students face investigation?
The ability for the University to investigate misconduct alleged against a former student or staff member is limited.
Constraints on any investigation include:
The ability of the University to obtain material from staff or students who may have left the University. Over time, memories become unreliable and other material such as emails or documents may have been misplaced, deleted or otherwise be unobtainable;
Former students or staff are under no obligation to maintain current contact details with the University. We are obliged in any process to ensure that the accused person is informed of any allegations; and
The power of the University to compel attendance or participation. While a student or staff member is present at the University, the University can direct that they participate in a disciplinary process or face exclusion or termination of employment. Once the student or staff member has left, the University cannot compel the cooperation of the accused person.
Apart from the practical constraints on an investigation, there are also limits on what penalties can be imposed. For the most part, penalties for sexual harassment or sexual assault involve suspension or exclusion of a student or the termination of employment of a staff member. Given that the staff member or student has already departed the University, the usual penalties are no longer available.
The police have substantially more resources than the University to investigate sexual misconduct, particularly serious cases. The police can investigate historical allegations and, if asked, the University would make available to the police any of its records and other information in support of such an investigation.
Who should I report a formal grievance to?
Allegations of sexual assault or harassment can be reported to the Registrar (Student Administration). The Registrar (Student Administration) can consider taking action under the ANU Discipline Rule.
An allegation can also be reported to the Head of your residential college for students who live on campus. The Head can commence action under the Rules of the College or refer the allegations to the Registrar.
For allegations of sexual assault or harassment against staff members, students should contact the Director, Human Resources.
The Dean of Students' office can also help with advice and support if you decide to take these steps.
How long does the Discipline Rule process take?
All reports that involve the safety of students are actioned as soon as possible.
Once allegations are reported to the University the accused person is advised of the complaint and provided the option to answer the allegations. Where the accused person is prepared to admit the allegations the process is likely to be completed in a few weeks. If the allegations are denied, it is likely to take a few weeks longer to finalise the evidence and hold an inquiry.
These estimates are approximate at best. Gathering information can depend on a variety of factors including the willingness of people to be involved as witnesses or the time taken to obtain and analyse electronic material - for example organisations such as Facebook have their own rules about whether they will provide the University with material.
The University aims to complete these processes as soon as reasonably possible, allowing for procedural fairness.
Who decides the outcome and any penalty following an enquiry under the Discipline Rule?
The Discipline Rule allows for a range of different outcomes and penalties depending upon the seriousness of the allegations. The most serious allegations will be heard by the Vice-Chancellor or someone appointed by the Vice-Chancellor.
Where can I get legal advice?
Students seeking legal advice about a complaint (either as the reporting student or as the accused student) can obtain free advice from the lawyers employed by the student associations ANUSA and PARSA. Individual lawyers cannot act for both parties.
Legal Aid ACT (http://www.legalaidact.org.au/) helps people in the ACT with legal issues, especially people who are socially or economically disadvantaged. The ACT Law Society maintains a register of local legal practitioner specialities (https://www.actlawsociety.asn.au/lawyers-directory)
The NTEU may be able to refer staff to local lawyers.
Who can provide advocacy services for me?
The student associations have staff employed as Student Assistance Officers to provide support, advice and advocacy assistance to students.
The NTEU can provide staff with support and advocacy assistance when facing misconduct allegations.
What if I am dissatisfied with the outcome of the University's actions?
The University will inquire and make a decision about an allegation according to the rules of procedural fairness.
If either party disagrees with the decision the Discipline Rule provides the option for the student to appeal. Similarly, the Enterprise Agreement provides the option for staff to appeal the decision following the investigation of an allegation.
The Commonwealth Ombudsman can be asked by a dissatisfied complainant to consider whether the University has followed appropriate processes.
The University does not have the same investigative resources as the police, hence where there are serious allegations that amount to allegations of criminal behaviour a student should consider making a police complaint.
The Canberra Rape Crisis Centre can provide information and support to students considering reporting sexual assault to police.