University of Queensland & Anor v Y

This matter concerned the scope of the University’s power to bring a disciplinary proceeding against a former student who, prior to his graduation, had been accused of sexually assaulting a fellow student. The only ground of review advanced by the respondent was that the University lacked the power to investigate whether this conduct occurred The Court of Appeal held that a former student was no longer subject to the University’s disciplinary regime but held that the University did not lack the power to initiate a disciplinary proceeding in relation to allegations of conduct that constituted a sexual offence.

McMurdo and Mullins JJA and Boddice J

2 October 2020

Until his graduation last December, the respondent was a student at the University of Queensland (“the University”). At the time of his graduation, he was the subject of an internal disciplinary proceeding arising from a fellow student’s complaint that he had sexually assaulted her. [6]–[21]. A permanent injunction had been granted prior to the respondent’s graduation to restrain that disciplinary proceeding, on the basis that it could not involve the determination of conduct that also amounted to a criminal offence of a sexual nature (see [2019] QSC 282). [1].

On the appeal by the University against the grant of injunction, two issues arose: first, whether, having graduated, the respondent remained subject to the University’s disciplinary regime; secondly, whether the University was permitted to make a determination under its disciplinary regime if the same conduct may have constituted a sexual offence. [2]–[5].

Justice McMurdo, with whom Mullins JA and Boddice J agreed, held that the University lacked jurisdiction over a former student but concluded, contrary to the primary judge’s conclusion that the University had the power to initiate a disciplinary proceeding in relation to alleged conduct that amounted to a criminal offence.

Was a former student subject to the disciplinary regime?

While the parties agreed that the respondent was in some way bound by the relevant University policies and procedures ([22]–[46]) when he was a current student, no contractual relationship or statutory provision was relied upon. [47]–[49]. According to McMurdo JA, this made it difficult for the University to establish that a former student remained subject to the disciplinary process. [49].

Justice McMurdo considered that the “most formidable obstacle” to the respondent continuing to be subject to the disciplinary process was the fact that none of the potential penalties were appropriate for a former student. [50]–[58]. Nor did any of the authorities relied upon by the University support its argument. [59]–[69]. Whether the respondent remained subject to the disciplinary regime had to be determined according to the terms of the relevant policies and procedures. In McMurdo JA’s view, the policies provided “several indications that the process cannot be imposed upon someone who is no longer an enrolled student” and there were “no terms of the policies and procedures” that indicated otherwise. This was consistent with the “purposes and objectives of policies”. [70]. Accordingly, as the respondent was no longer subject to the disciplinary regime, there was a basis for enjoining the University from proceeding further against the respondent and dismissing the appeal. [71].

Were there grounds for reviewing the primary judgment?

The primary judge concluded that the Disciplinary Board only had jurisdiction in relation to sexual offences where the relevant offence had been proved. Her Honour considered that cl 4.4 of the University’s “Sexual Misconduct Policy” – which provided that the University did not have jurisdiction over criminal offences but could take action against breaches of its “rules, policies and procedures” – removed jurisdiction from the Disciplinary Board in relation to allegations of sexual offences. [75]–[85].

Justice McMurdo held that this misconstrued cl 4.4. [85]. Clause 4.4 did not remove jurisdiction. Rather, it was an acknowledgment 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”. [86]. His Honour noted that the definition of “Sexual Misconduct” did not exclude sexual offences. Instead, it specifically included such conduct, with the result that such conduct might constitute “misconduct” or “serious misconduct” under the “Student Integrity and Misconduct Policy” and so fall within the Disciplinary Board’s jurisdiction. [87].

While the primary judge was “rightly concerned by the prospect that such a serious finding might be made as the outcome of a process which, in many respects, seems unsuited to a factual inquiry of this kind”, the only ground relied upon by the respondent was that the University lacked the power to investigate whether the conduct had occurred. Justice McMurdo was “unable to accept” that in all cases it would be impossible for a disciplinary hearing of such an allegation to be conducted with procedural fairness to the student. [88].

Accordingly, the primary judge ought to have held that the disciplinary proceeding, when initiated, was within the University’s powers. [90].

Disposition

In the result, the appeal against the grant of the injunction was dismissed but the order that the University pay the respondent’s costs of the proceeding below was set aside. [91].

S Walpole