Chapter 2Key Issues
2.1For many years advocates have called for the creation of a National Student Ombudsman (NSO) for the higher education sector—particularly in the wake of student surveys 'that painted a shocking picture of safety on university campuses'.
2.2This was also reflected in the Universities Accord Final Report (Accord Final Report), which emphasised the need for higher education providers to ensure learning environments are 'safe, welcoming and inclusive spaces for all students' and to take action to protect students:
When issues arise, universities need to respond quickly and take action to protect those students whose safety has been compromised or threatened by gender-based violence, racism, discrimination, bullying and harassment and other forms of discrimination. This includes addressing student safety within the context of national and global events.
2.3The Accord Final Report identified a range of issues that impact on student wellbeing, including student safety, mental health, accessibility for students with disability, and social supports. It also referred to the vulnerability of students living away from home for the first time.
2.4Critically, the Accord Final Report highlighted the experiences of those who experienced gender-based violence and did not receive 'the care and support they need and deserve from their higher education providers'. It stated:
There are often inadequate pathways for victim-survivors to raise complaints about providers' responses and there is a perceived lack of accountability for broader action across the system to address the drivers of this violence and respond appropriately.
2.5The Universities Accord (National Student Ombudsman) Bill 2024 (bill) responds to the need to address student safety and wellbeing by implementing Recommendation 18b of the Accord Final Report, which recommended establishing the NSO to help improve the overall experience of higher education students and better reflect student expectations of their higher education outcomes.
2.6Subject to the passage of the bill, the NSO is expected to begin receiving complaints from 1 February 2025.
General views on the bill
2.7There was overwhelming participant support for the creation of the NSO. For example, Dr Allison Henry called its establishment 'a long overdue acknowledgement that the complaints processes currently in place in Australian university settings have consistently and often catastrophically failed student survivors of sexual violence'.
2.8In expressing support for the bill, End Rape on Campus Australia (EROC Australia) and Fair Agenda described the NSO as:
… essential not only to the success of the Action Plan Addressing Gender-based Violence in Higher Education, but to ensure fairness, transparency and accountability across Australia’s higher education sector.
2.9Likewise, the Group of Eight (Go8) stated that student safety was 'fundamental and non-negotiable' and described the NSO as 'an important initiative that will further enhance the safety of students'.
2.10While welcoming the NOS as an 'effective, trauma-informed mechanism for escalating complaints relating to gender-based violence', the University of Technology Sydney (UTS) also expressed its support for NSO's fuller remit:
We are also pleased to see that the bill gives full effect to recommendation 18(b) of the Australian Universities Accord Final Report to establish a NSO to respond to student complaints concerning a range of issues relating to their studies and student life.
2.11A similar sentiment was expressed by Edith Cowan University, which supported broadening the NSO's functions beyond gender and gender-based violence to incorporate 'all forms of marginalisation and discrimination experienced by students during their studies', including racism, ableism, homophobia and biphobia, transphobia, Islamophobia, antisemitism, xenophobia, and ageism.
2.12Further, the Australian Technology Network of Universities (ATN) supported the NSO and contended that it 'should bring simplicity and national consistency to the arrangements for review of higher education provider actions affecting students'.
2.13In addition to support for establishment of the NSO, there was also support for particular elements of the bill. For example, the Queensland University of Technology (QUT) expressed support for the 'comprehensive, trauma-informed complaints mechanism that will underpin the [NSO], as well as the restorative engagement process and comprehensive appeal avenues'.
2.14Submitters such as EROC Australia and Fair Agenda, The STOP Campaign, and Dr Allison Henry welcomed various measures relating to the ability for complaints to be made on behalf of students, the provision of multiple avenues to resolve complaints, reporting and transparency, and protection from reprisals.
2.15There was also significant support for the consultation undertaken to develop the bill. For example, Dr Allison Henry stated that she was pleased that several concerns she raised during consultations on the bill had been addressed. Similar views were also expressed by EROC Australia and Fair Agenda.
2.16In addition, The STOP Campaign stated that, as a result of its engagement in a number of fora, it was 'satisfied that the voices and views of victim-survivors and peak bodies that represent groups that experience gender-based violence at disproportionate rates have been considered in the development of the bill'.
2.17However, The STOP Campaign also underscored the importance of involving victim-survivors and their advocates in implementation of the NSO.
2.18The need to consider stakeholder views in the design of the NSO—in particular, 'what is required to deliver a safe and effective service'—was also noted by the Office of the Commonwealth Ombudsman.
2.19While supportive of the NSO, some participants raised concerns about specific aspects of the bill, particularly the potential capture of matters involving academic judgement and the ability of the Minister to determine actions within the NSO's remit via the NSO Rules. Some concerns were also raised about operational issues, such as the delineation of responsibilities between complaints handling bodies, and the resourcing and skills of the NSO.
2.20To this end, the National Tertiary Education Union (NTEU) recommended that the operation of the NSO and its supporting legislation be undertaken three years after its establishment. According to the NTEU, this would allow any unintended outcomes to be addressed and ensure the NSO was functioning as intended. A monitoring mechanism for assessing the effectiveness and resourcing of the NSO was also supported by the Queensland University of Technology (QUT).
2.21Overall, strong support for passage of the bill was expressed by the NTEU, the Australia/Israel & Jewish Affairs Council, Fair Agenda and End Rape on Campus, as well as The STOP Campaign, which stated that:
… we support the Bill in its current form with no further amendments. We believe it is an integral piece of legislation that will ultimately prevent violence, reduce trauma, and save lives.
Comments on specific aspects of the bill
2.22While participants provided feedback on various aspects of the bill, commentary generally centred on the:
delineation of responsibilities between the NSO and other Commonwealth, state and territory complaints handing bodies;
the potential capture of matters involving academic judgement; and
the resourcing and skills of the NSO, particularly in relation to trauma‑informed practice.
Delineation of responsibilities between complaints handling bodies
2.23Some submitters suggested that the greater clarity was required to address potential overlap between the responsibilities of the NSO and other regulators, including provider-level student ombudsman offices, as well as state and territory ombudsmen.
2.24For example, Monash University queried whether complainants would be able to 'forum shop' by pursuing complaints with more than one body. Likewise, Deakin University asked how the NSO would engage with state and territory ombudsmen to ensure 'a collaborative approach, while avoiding overlap and regulatory repetition'.
2.25Independent Higher Education Australia also raised the prospect of potential overlap between the NSO, the Tertiary Education Quality and Standards Agency (TEQSA) and the Department of Education, with similar concerns also raised by the Group of Eight.
2.26For this reason, Dr Natalia Antolak-Saper suggested that the NSO should have 'exclusive jurisdiction', which would eliminate forum shopping, provide administrative efficiencies and consistency in decision-making, and remove the need for referrals between complaints handling bodies.
2.27However, while agreeing that any overlaps should be clarified prior to implementation, the ATN submitted that the bill 'appears to provide appropriate mechanisms to allow referrals between these agencies and to prevent duplication of effort and waste'.
2.28Similarly, Dr Henry argued that the 'streamlined escalated complaints process' coupled with the proposed referral powers offers the chance to replace the existing 'confusing array of student complaints options with a more accessible, and nationally consistent, complaints mechanism'.
2.29This was supported by evidence from the Commonwealth Ombudsman, which stressed the importance of a 'no wrong door approach to accessing the NSO' and stated that it was designing 'streamlined and collaborative' processes and procedures to 'minimise the risk of duplicating roles or adding complexity'.
2.30The Department of Education and the Attorney-General's Department (departments) also indicated the NSO would 'work cooperatively with state and territory ombudsmen and other relevant bodies, such as human rights, anti‑discrimination and equal opportunities bodies'. It further submitted that the bill offered the ability to transfer complaints (or parts thereof) to the body best placed to deal with the complaint.
2.31Indeed, the Commonwealth Ombudsman underscored its experience in working closely with other regulators, such as TEQSA, the Australian Skills Quality Authority, the Australian Competition and Consumer Commission, and the Australian Prudential Regulation Authority. The Commonwealth Ombudsman also indicated it was creating 'effective partnerships' with TEQSA and the Department of Education, given the role of those agencies in regulating the higher education sector.
2.32The Commonwealth Ombudsman also stated that it has 'commenced regular engagement with state and territory Ombudsmen to establish clear and effective information sharing protocols'. In addition to supporting a trauma‑informed approach, strong information sharing protocols would help the NSO 'detect possible systemic issues in higher education' and report comprehensively 'on the volume and relevant trends in student complaints about higher education'.
2.33Further, the draft Action Plan Addressing Gender-based Violence in Higher Educationnoted that jurisdictions had agreed in principle 'to reflect the Ombudsman in their own arrangements and refer students with complaints where relevant'.
2.34To this end, the departments noted that the Australian Government is working closely with state and territory governments through a monthly Policy Forum to support implementation of the NSO.
Potential capture of matters involving academic judgement
2.35The scope of the powers to investigate matters of university administration was a topic of significant concern for many institutions. They collectively argue that while academic freedom is an excluded matter in the bill, many of the administration matters that could impact on the exercise of academic judgement may be within the scope of the NSO's powers.
2.36QUT was one of several universities who were concerned about the potential ambiguity in the role of the Ombudsman in relation to academic freedom:
The inclusion of matters of academic judgement within the National Student Ombudsman’s remit will necessarily infringe upon institutions' obligations to uphold, promote and protect academic freedom, as required of them under HESA, and upon individual academics' legally protected right to exercise academic freedom. This tension cannot be resolved by the issuance of a legislative instrument.
Should a Minister wish to intervene in matters of academic judgement, with these grave implications for academic freedom…
2.37QUT recommended that this the exclusion be clarified in the legislation:
QUT recommends the explicit exclusion of matters of academic judgement from the scope of the National Student Ombudsman Rules to exempt matters from the statutory exclusions.
2.38Monash University argued that it is difficult to separate the exercise of academic freedom from the application of academic policy. In their submission they note the exclusion of academic freedom from the jurisdiction of the NSO, and accept that it is not the intention of the NSO to interfere in matters of academic judgement. However they are not persuaded that the legislation as it currently stands adequately ensures the intention of the bill for academic freedom to be an excluded matter for the NSO:
The Bill should be amended to exclude from the NSO's jurisdiction any policy or procedure, the primary purpose of which is to regulate academic matters, as well as the application of such a policy or procedure in an individual case.
2.39Similar concerns were raised by the University of Melbourne about whether a distinction is adequately drawn in the legislation between academic judgement and the processes and procedures that would be within the scope of the powers of the Ombudsman:
Section 21AD excludes certain actions from the Ombudsman's scope, such as any action involving the exercise of "academic judgment". This term is not defined, although the Explanatory Memorandum lists examples, such as the content of a curriculum and teaching and assessment methods (p. 23). It argues that matters such as reasonable adjustments, provision and standard of teaching facilities, and disciplinary and misconduct procedures would not be considered matters requiring academic judgment and could be within scope. This boundary is ambiguous, particularly as it relates to academic misconduct procedures, which are often determined with reference to individual circumstances, parity of treatment of students and the demands of ensuring academic standards.
2.40The University went on to recommend that that a definition of academic judgement is included in the legislation:
The University recommends that the Bill include a definition of "academic judgment" to ensure academic freedom and academic judgements about education and research are protected.
2.41In terms of the definition, Universities Australia pointed out that the definition of academic freedom was set out in the 'French Model Code review' which the government asked institutions to adopt in 2019. In this definition academic freedom is the:
… autonomy of the higher education provider in relation to the choice of academic courses and offerings, the ways in which these are taught and the choices of research activities and the ways in which they are conducted.
2.42The removal of Section 21 AD (4) was proposed by Mr Andrew Norton, as it provides a mechanism through delegated legislation to override the excluded actions set out in 21 AD (3). Mr Norton argues that any attempt to override academic freedom or judgement should at the very least be subject to active scrutiny by the parliament rather than be done through delegated legislation where the scrutiny is limited:
As the National Student Ombudsman Rules would be a legislative instrument, an amendment breaching academic freedom could be disallowed by either the House of Representatives or the Senate. But the grey area cases […] have not attracted much pushback, partly because legislative instruments get much less attention than legislation.
2.43Further, the NTEU noted that although 'the model overview and legislation both outline exemptions around complaints directly related to actions that rely on academic judgement', concerns had been expressed that the NSO could inadvertently lead to students seeking to influence academic assessments by threatening to complain, or could result in some academics seeking to avoid complaints by giving more favourable grades. However, the NTEU went on to state that this did not seem to have occurred in the case of the existing Overseas Student Ombudsman.
2.44Nonetheless, to ensure the NOS functions as intended and to allow for any unanticipated outcomes to be addressed, the NTEU also proposed that a review of the operation of the NOS and its supporting legislation be undertaken three years after establishment.
NSO workload and skills
2.45A number of submitters such as ATN highlighted the need for the NSO to be appropriately resourced and staffed, particularly in relation to its ability to deliver trauma-informed services.
2.46For example, EROC and Fair Agenda Australia pointed to the importance of the NSO being sufficiently staffed to manage its workload and for those staff to have the skills and expertise to handle student complaints, including through alternative dispute resolution mechanisms and restorative engagement processes.
2.47Likewise, The STOP Campaign argued that it was 'integral that the NSO be adequately staffed by people with expertise in gender-based violence, discrimination, restorative practices and complaints mechanisms to ensure its effective functioning'. The STOP Campaign also proposed that the NSO should consult regularly with experts and people with lived experience in its design and ongoing implementation.
2.48In addition, the University of Queensland raised the potential for the NSO to have 'an unsuitable complaints volume'. A similar view was expressed by Monash University, which noted the potential for the NSO to receive a large volume of complaints and stressed the importance of the NSO being staffed by people with knowledge of higher education:
For example, the NSO office should comprise staff who understand and respect the diverse backgrounds and identities of students, and can create a safe and confidential space for all students to raise complaints. Processes need to ensure cultural appropriateness for certain cohorts, particularly First Nations people, and the integration of advice from experts and students on a continuous basis. This should involve enduring partnerships with peak student bodies and other relevant sector experts who can disseminate information about the NSO service to particularly vulnerable cohorts.
2.49The Commonwealth Ombudsman noted that it was experienced in handling student complaints—via its functions as the Overseas Students Ombudsman and the VET Student Loans Ombudsman—and 'therefore well positioned to successfully implement and administer the NSO'.
2.50As with other submitters, the Commonwealth Ombudsman also underscored the importance of a trauma-informed approach to complaint handling, particularly in relation to receiving complaints about gender-based violence and facilitating restorative engagement processes. It also recognised that it would be critical for the NSO to hire staff who 'can build trust with their complainants and are collaborative in their approach to assessing and pursuing dispute resolution options'.
2.51To this end, the Commonwealth Ombudsman highlighted its experience in delivering trauma-informed services as a result of its experience administering the Defence Abuse Reparation Scheme and Restorative Engagement Program (in its role as the Defence Force Ombudsman). Since 2017, the Defence Force Ombudsman has facilitated 292 restorative engagement conferences under this scheme, and in 2023–24 alone it finalised 1067 reports of abuse, made 634 recommendations for reparation and facilitated 41 restorative engagement conferences. According to the Commonwealth Ombudsman, surveys of participants in its restorative engagement conferences have found that:
83 per cent of respondents considered the program made a positive impact on their life;
99 per cent of respondents considered the program provided the opportunity to speak to their story of abuse in a way they were comfortable with;
99 per cent of respondents felt listened to during their conference; and
93 per cent of respondents felt the Australian Defence Force representee was accountable to their experience of abuse and responded with expressions of regret, sorrow or apology.
2.52The Commonwealth Ombudsman also underscored the importance of accessibility in relation to the ability of students to make complaints to the NSO. It indicated that it is currently exploring a range of channels, including online forms, phone and face-to-face, as well as online chat functions and options based on social media presence.
2.53Further, the Commonwealth Ombudsman's work on accessibility would also be informed by its recently commissioned market research, which involved a 'large cohort of students from diverse groups including students with disability, LGBTQIA+ students, First Nations students, culturally and linguistically diverse students and students in regional and remote locations'.
2.54In relation to the potential workload of the NSO, the Commonwealth Ombudsman acknowledged that the 'limited historical data on the volume and nature of student complaints' made it difficult to predict demand for NSO services—particularly in relation to the potential volume of historical complaints. However, it stressed that it would be 'collecting accurate data on service demand to ensure sustainable funding beyond the initial two years of allocated funding'.
Committee view
2.55The committee received valuable contributions from stakeholders across the higher education sector, with broad support for the establishment of the role of National Student Ombudsman (NSO).
2.56The bill enacts a key recommendation of the Universities Accord final report to put student wellbeing and safety at the centre of their academic journey by ensuring that learning environments are safe, welcoming and inclusive. The introduction of an NSO to investigate all forms of discrimination including gender-based violence, racism, discrimination, bullying and harassment is a crucial step in achieving this.
2.57Sadly, the experiences of some students highlighted in the Accord final report were shocking and distressing. The stories of gender-based violence, and the extent of the issue, exposed a system without the ability to adequately respond to the sheer scale and depth of the problem.
2.58Submitters including the National Tertiary Education Union noted that the Howard Government’s introduction of Voluntary Student Unionism in 2005 resulted in the disappearance of many independent student advocacy services, which has made the need for an NSO even more acute.
2.59Similarly, Dr Allison Henry wrote that the establishment of a new NSO is a long overdue acknowledgement that the complaints processes currently in place have consistently and often catastrophically failed student survivors of sexual violence.
2.60The first of its kind, the dedicated national body will have significant powers to investigate complaints on a broad range of issues, make findings and recommendations to institutions, and monitor the implementation of the actions taken by universities to address those complaints.
2.61Submitters across the sector provided not only broad support for the introduction of the role, but also informed suggestions to ensure that the office of the NSO delivers on the promise to materially improve student safety, welfare and wellbeing.
2.62How the new NSO works and engages with other bodies, including state and territory counterparts, was raised by a number of submitters. Questions included who should take the lead on the investigation of cases, while avoiding overlap and regulatory repetition.
2.63The Commonwealth Ombudsman emphasised that there will be 'no wrong door' when it comes to how students raised complaints, and that they had extensive experience in working closely with other regulators, such as the Tertiary Education Quality and Standards Agency, and the Australian Skills Quality Authority. The committee is assured that the experience and expertise of the Commonwealth Ombudsman's office will inform the operations of the NSO.
2.64A further issue raised by institutions, was that the powers of the NSO could infringe into areas of academic judgement and freedom.
2.65The committee notes that the legislation explicitly sets out the limitations on the scope of the powers of the NSO to ensure that academic freedom remains solely the purview of the institutions. Further, the committee heard from the National Tertiary Education Union that this did not seem to have occurred in the case of the existing Overseas Student Ombudsman, and the committee sees no reason why such a conflict would arise with the NSO.
2.66The final area of concern raised was around how the NSO would be staffed and resourced. The committee is in full agreement that it is crucial that the office has all the available expertise on hand to address the complex, and often sensitive matters which may come before it.
2.67To this end the committee is again confident that the Commonwealth Ombudsman's deep and substantial experience leaves them well positioned to successfully implement and administer the NSO, whether that is in terms of the volume of complaints, or the trauma-based response and expertise required for complex and sensitive complaints to be dealt with in a professional and appropriate manner.
2.68Overall, the committee welcomes the government's initiative in introducing this long-awaited reform.
2.69The committee recommends the bill be passed.
Senator Tony Sheldon
Chair
Senator for New South Wales