Policy

Sexual Misconduct - Policy

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1.  Purpose and Objectives

The University of Queensland is committed to ensuring that the University environment is safe, respectful and free from all forms of Sexual Misconduct. This policy outlines the overarching principles governing the University’s approach to preventing, addressing and responding to Sexual Misconduct, which is behaviour inconsistent with the University’s values.  This policy is to be read in conjunction with the Sexual Misconduct – Procedures.

2.  Definitions and Terms

Complainant – is a person who makes a Disclosure or a Formal Report on their own behalf.  It also includes a person on whose behalf a Disclosure or Formal Report is made by a Third Party Reporter.

Consent - Consent can only be freely and voluntarily given by a person with the cognitive capacity to do so.

“Consent” is the voluntary agreement to the act or acts in question and to continue to engage in the act or acts. Voluntary agreement to engage in the activity or to continue to engage in the activity must be communicated through words or conduct.

  • Consent can be withdrawn at any time during the act or acts in question.
  • Consenting to a sexual activity with an individual or individuals does not mean that consent is given for another sexual activity with an individual or individuals, and consent only applies to each specific instance of sexual activity.
  • Circumstances in which a person does not consent to an act or acts include:

a)    the person is asleep or unconscious;

b)    the person is incapable of consenting, such as where they are affected by alcohol or another drug;

c)    the person submits to the act because of: force or the fear of force; threats or intimidation; fear of harm; exercise of authority; or false or fraudulent representations about the nature or purpose of the act; or

d)    the person submits to the act because of false or fraudulent representation of identity.

  • Consent cannot be given by a person under the age of 16 years.

Disclosure – is the sharing of information regarding Sexual Misconduct to the persons or units specified in section 4.6 of the Sexual Misconduct – Procedures

Enterprise Agreement – is The University of Queensland Enterprise Agreement 2014-2017, or as amended or replaced.

Formal Report - is providing a formal statement regarding Sexual Misconduct to the persons or units specified in section 4.7 of the Sexual Misconduct – Procedures.  A formal statement regarding Sexual Misconduct given to the police or another external agency is a Formal Report, provided that the University is also made aware of its existence and it is referred by the Complainant or Third Party Reporter to the First Responder Network or the Sexual Misconduct Support Unit.

Procedural Fairness – is a principle that is applied by the University to ensure that decisions are made in accordance with the rule against bias and the hearing rule (i.e. a person is given an opportunity to present their case with knowledge of any prejudicial material that may be taken into account by the decision-maker).

Sexual Offence - is any criminal offence of a sexual nature under the criminal law, including the Criminal Code 1899 (Qld) and the Summary Offences Act 2005 (Qld).

Sexual Harassment – happens if a person:

(a) subjects another person to an unsolicited act of physical intimacy; or

(b) makes an unsolicited demand or request (whether directly or by implication) for sexual favours from the other person; or

(c) makes a remark with sexual connotations relating to the other person; or

(d) engages in any other unwelcome conduct of a sexual nature in relation to the other person;

and the person engaging in the conduct described in (a), (b), (c) or (d) does so–

(e) with the intention of offending, humiliating or intimidating the other person; or

(f) in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.

   Examples of sexual harassment include (but are not limited to):

   Examples for paragraph (a)

  • physical contact such as patting, pinching or touching in a sexual way;
  • unnecessary familiarity such as deliberately brushing against a person;

   Examples for paragraph (b)

  • sexual propositions;

   Examples for paragraph (c)

  • unwelcome and uncalled for remarks or insinuations about a person's sex or private life;
  • suggestive comments about a person's appearance or body;

   Examples for paragraph (d)

  • offensive telephone calls;
  • unwanted sexual attention using internet, social networking sites or mobile phones;
  • indecent exposure;
  • a publication such as sexually offensive emails or graphics;
  • sexually offensive screensavers or posters.

Sexual harassment is unlawful when it falls within the relevant statutory definition under the Anti-Discrimination Act 1991 (Qld) and/or the Sex Discrimination Act 1984 (Cth).

Sexual harassment may also in certain circumstances be a criminal offence.

Sexual Misconduct - is a broad term encompassing any unwelcome behaviour of a sexual nature without Consent.  It includes behaviour that could amount to a Sexual Offence and/or Sexual Harassment.

‘Sexual Misconduct’ as defined in this policy may amount to ‘misconduct’ or ‘serious misconduct’ for the purposes of the Student Integrity and Misconduct Policy or the Enterprise Agreement.

Third Party Reporter – is a person who makes a Disclosure or a Formal Report on behalf of or in relation to another person.

Trauma-Informed – understanding, recognising and responding to the impact of trauma, and emphasising physical, psychological and emotional safety and the importance of choice for persons who have experienced Sexual Misconduct.

UQ Community – means current UQ students, staff, other workers, volunteers, official visitors, recognised individuals, honorary position holders, adjunct academic and support position holders, suppliers of academic placements or official suppliers of academic related activity, and anyone else contractually bound to comply with this policy. 

UQ Related Conduct – means any conduct that is connected to UQ, including conduct that:

  • occurs during, or in connection with, any function, activity or event related to UQ (whether sanctioned by UQ or otherwise);
  • occurs when a person is representing UQ in any capacity;
  • occurs during, or in connection with, the performance of duties for UQ;
  • occurs using, or is facilitated by, UQ ICT resources or other UQ equipment; or
  • occurs on, or in connection with, any property owned, leased or occupied by UQ (or any entities it controls) or any lands or roads within any UQ campus.

Victimisation – happens if a person does an act, or threatens to do an act against a Complainant, or another person associated with the Complainant, including a witness or Third Party Reporter, because a Complainant, or another person associated with the Complainant:

  • has made a Disclosure or Formal Report, or intends to make a police or other external report; or
  • in good faith, intends to make a Disclosure or Formal Report, or intends to make a police or other external report; or
  • is, has been, or intends to be involved in a proceeding relating to Sexual Misconduct.

A reference to involvement in a proceeding includes involvement in a prosecution for an offence involving Sexual Misconduct, involvement in a University or external agency investigation, or any other process to deal with Sexual Misconduct. 

Victimisation does not include any action taken against a person for a false or malicious complaint made against another person in order to prejudice that other person.

Adverse action taken against a person may be unlawful under the Fair Work Act 2009 (Cth) and a person who makes a public interest disclosure under the Public Interest Disclosure Act 2010 (Qld) is protected by that Act.  

3.  Policy Scope/Coverage

This policy applies to all members of the UQ Community, including all students and staff, whether or not those staff are covered by the Enterprise Agreement, in relation to UQ Related Conduct.

4.  Policy Statement

The Sexual Misconduct – Procedures will be implemented having regard to the principles outlined in 4.1 to 4.11 below.  These principles reflect the University’s commitment to preventing all forms of Sexual Misconduct, supporting individuals who are affected by Sexual Misconduct, and responding appropriately and sensitively when Sexual Misconduct occurs:

4.1 The University prohibits all forms of Sexual Misconduct, and requires all members of the UQ Community to comply with this prohibition.

4.2 The University acknowledges that education and awareness are important aspects of prevention, and commits to educating students and staff to assist in the prevention of Sexual Misconduct in the UQ Community.

4.3 Members of the UQ Community, particularly supervisors and managers, are made aware of the responsibility they have in responding appropriately when they are made aware of information regarding Sexual Misconduct, particularly taking account of Trauma-Informed approaches.

4.4 The University acknowledges that Sexual Misconduct may include criminal behaviours and may 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.

4.5 The safety, welfare and support of the UQ Community is paramount. UQ recognises that any Sexual Misconduct is likely to have an adverse impact on members of the UQ Community, and is committed to appropriately supporting those affected.

4.6 Procedures supporting this policy aim to be Trauma-Informed and afford Procedural Fairness.

4.7 Disclosure and Formal Reporting options are intended to be simple, accessible and available through multiple avenues.

4.8 The University aims to bring sensitivity, timeliness and good management to its responses to Disclosures and Formal Reports and to meet legal requirements.

4.9 Confidentiality and information privacy will be upheld, in accordance with legislative requirements and University policies and procedures.

4.10 The University will not tolerate Victimisation.

4.11 The University recognises that Sexual Misconduct may be experienced by all people regardless of their sexuality or gender identity, whether heterosexual, lesbian, gay, bisexual, transgender, intersex or queer.

 

Custodians
Academic Registrar
Mr Mark Erickson
Director, Human Resources
Mr Bill Kernahan (Acting)
Director, Student Affairs
Mr Andrew Lee

Procedures

Sexual Misconduct - Procedures

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1. Definitions and Terms

Words or phrases used in these procedures and not otherwise defined in this document have the meaning they have in the Sexual Misconduct – Policy.

Disciplinary Process – is a disciplinary process in relation to a Respondent conducted as part of further action taken by the University in accordance with section 5 below. 

First Responder Network or FRN – is the group of individuals who are trained to assist students and staff to access Support and Reasonable Measures and make Disclosures or Formal Reports of Sexual Misconduct.  The FRN is coordinated by the SMSU.

Reasonable Measures – are arrangements or adjustments as defined in section 8 below that may be implemented on a case-by-case basis where a Disclosure or Formal Report has been made.

Respondent – is a person about whom a complaint of Sexual Misconduct is made as part of a Formal Report.

Sexual Misconduct has the meaning given to it in the Sexual Misconduct – Policy and in sections 6, 7 and 8 of these procedures also includes alleged Sexual Misconduct.

Sexual Misconduct Support Unit or SMSU – is a unit responsible for coordinating the University’s responses to Disclosures or Formal Reports of Sexual Misconduct within the UQ Community.  The SMSU will coordinate an appropriately trained and supported FRN; coordinate appropriate Support; deal with Formal Reports in a timely manner; assist the University in communicating with Complainants, Third Party Reporters and witnesses; establish, oversee and coordinate Sexual Misconduct prevention and response protocols and processes, communications and training; and any other matters required from time-to-time to perform its functions.

Support – all reasonable steps to support all parties affected by Sexual Misconduct, which will normally be coordinated by the SMSU, in accordance with section 7 below.

2. Introduction and Application

2.1 These procedures have been developed having regard to Australian and international guidelines for best-practice in relation to Sexual Misconduct prevention, management and response.  Effort has been made to provide procedures which are Trauma-Informed.  However, the complex nature of Sexual Misconduct means that there may be circumstances in individual cases requiring changes to these procedures to render them appropriate to the circumstances.  In any such case, the University will draw on the principles outlined in its Sexual Misconduct – Policy.

2.2 These procedures apply to all members of the UQ Community, including all students and staff, whether or not those staff are covered by the Enterprise Agreement, in relation to UQ Related Conduct.

2.3 Nothing in these procedures prevents staff or students from accessing other procedures available to them, including but not limited to the Public Interest Disclosure Policy, Staff Grievance Resolution Policy or the Student Grievance Resolution Policy.

3. Prevention and education

All members of the UQ Community are responsible for maintaining a safe and respectful University environment.  To assist in this:

3.1 The SMSU will establish, oversee and coordinate Sexual Misconduct prevention and response protocols and processes, communications and training.

3.2 The SMSU will oversee the delivery of an education program designed to assist in the prevention of Sexual Misconduct in the UQ Community.

3.3 University leaders (including student leaders), managers, and supervisors have particular responsibilities to promote an environment of ‘zero tolerance’ towards all forms of Sexual Misconduct.  

3.4 Prevention measures put in place by the University will aim to be Trauma-Informed, and developed in conjunction with subject matter experts as required.

4. How to share information, make a Disclosure or make a Formal Report

4.1 If a person would like UQ to take further steps in relation to Sexual Misconduct, that person should consider making a Disclosure or a Formal Report.  However, nothing in these procedures precludes a person from sharing or talking about Sexual Misconduct to a member of the UQ Community or any other person if they wish to do so without making a Disclosure or a Formal Report. 

4.2 A Disclosure or a Formal Report may be made by a Complainant, or a Third Party Reporter.

4.3 There are two main differences between a Disclosure and a Formal Report.  A Disclosure is a less formal option that is made to access Support and/or Reasonable Measures.  A Formal Report is a more formal option that is made to access Support and/or Reasonable Measures, but may also initiate further action by the University such as an investigation and/or a Disciplinary Process.

4.4 Nothing in these procedures precludes a person from making a report to the police or another external agency at any time (see section 6 below).

4.5 All Disclosures and Formal Reports will be treated sensitively, addressed in a timely manner and managed in accordance with legal requirements.

4.6 Disclosures

4.6.1 A Disclosure may be made to:

a) any member of the FRN;

b) any member of the SMSU; or

c) any member of the University’s counselling services.

4.6.2 The person receiving the Disclosure will take reasonable steps to:

a) inform the person making the Disclosure of the Support available to them, and of the Reasonable Measures that may be implemented;

b) outline the options available to the person making the Disclosure to help them determine any next steps they may wish to take;

c) ask the person making the Disclosure whether they wish to proceed with either a Formal Report or a report to the police or other external agency; and

d) offer assistance in any other way as appropriate in the circumstances.

4.6.3 A Disclosure does not initiate further action by the University, subject to section 6 below.  If the person making the Disclosure wishes further action to be taken, they may elect to make a Formal Report.

4.7 Formal Reports

4.7.1 A Formal Report may be made to:

a) any member of the FRN;

b) any member of the SMSU;

c) any member of the University’s counselling services; or

d) the police or another external agency and will be considered a Formal Report under these procedures if the University is also made aware of its existence and it is referred to the FRN or the SMSU.

4.7.2 The person receiving the Formal Report will take reasonable steps to:

a) inform the person making the Formal Report of the Support available to them, and of the Reasonable Measures that may be implemented;

b) outline the options available to the person making the Formal Report to help them determine any next steps they may wish to take;

c) ask the person making the Formal Report whether they wish to proceed with a report to the police or other external agency; and

d) offer assistance in any other way as appropriate in the circumstances.

4.8 Anonymous Formal Reports and Formal Reports from a Third Party Reporter

4.8.1 The University may not be able to take further action arising out of anonymous Formal Reports or Formal Reports from a Third Party Reporter in certain circumstances, including but not limited to where:

a) limited or no information is available to identify the parties involved or from the person the subject of the Sexual Misconduct in the Formal Report; and/or

b) any further action may not be able to be carried out in accordance with principles of Procedural Fairness.

5. Further Action

5.1 Further action can only be taken by the University in response to a Formal Report where the Formal Report concerns UQ Related Conduct and the Respondent is a member of the UQ Community. 

5.2 Any further action taken by the University in response to a Formal Report, including any investigation or Disciplinary Process, is separate from and not related to any criminal proceedings or investigations conducted by the police or other external agency.

5.3 A Formal Report will be provided to the relevant officer of the University according to the status of the Respondent as set out in sections 5.6, 5.7 and 5.8 below.  If the Respondent holds more than one status, the Formal Report will be provided to all relevant officers.

5.4 Support and Reasonable Measures will continue to be available to all relevant members of the UQ Community while any investigation or Disciplinary Process is ongoing.

5.5 The outcome of any investigation or Disciplinary Process will be communicated to the Complainant after the conclusion of any such process.

5.6 Students

5.6.1 Where the Respondent is a student, the relevant officer of the University is the Academic Registrar.

5.6.2 The Formal Report will be considered and may be progressed by the Academic Registrar pursuant to the Student Integrity and Misconduct Policy.

5.7 Staff covered by the Enterprise Agreement

5.7.1 Where the Respondent is a member of staff to whom the Enterprise Agreement applies, the Formal Report will be considered and may be progressed under the provisions for misconduct or serious misconduct outlined in the Enterprise Agreement.

5.8 Other staff and members of the UQ Community

5.8.1 Where the Respondent is a member of the UQ Community who is not a student, or a staff member to whom the Enterprise Agreement applies, the relevant officer is the Head of Unit responsible for the engagement of the Respondent or other person or body to whom the Respondent reports.

5.8.2 The Formal Report will be considered and may be progressed by the relevant officer in accordance with any relevant contract and/or University policies and procedures.

6. Reporting to the police or other external agency

Two basic principles underpin the University’s position on reporting Sexual Misconduct to the police or other external agency:

  • Any person can make a report to the police or other external agency at any time.  No-one may compel or prevent any person from reporting or referring a matter to the police or other external agency and no-one should seek to exert any pressure on any person to dissuade them from reporting or referring a matter to the police or other external agency; and
  • Generally, it should be the Complainant who decides whether or not they report the matter to the police or other external agency.

6.1 The University, through the SMSU, will offer Support to a member of the UQ Community who wishes to report a matter to the police.  There are a number of different ways in which a report can be made to the police, and the SMSU will assist with these options.

6.2 Disclosures and Formal Reports will not be reported to the police or other external agency without the consent of the Complainant, except in the limited circumstances set out in section 6.3 below.

6.3 The circumstances under which the University may report a Disclosure or Formal Report to the police or other external agency include:

6.3.1 where the Complainant has consented or asked the University to do so; or

6.3.2 the University is compelled to do so by law; or

6.3.3 where reporting is, in the reasonable opinion of the Vice-Chancellor, appropriate in order to lessen or prevent a threat to the life, health or safety of the Complainant, or of another person.

6.4 When reporting any Disclosures or Formal Reports to the police or other external agency, the University will only provide as much information as is required by law, or as necessary for action to be taken.

7. Support

7.1 The University will take all reasonable steps to ensure that Support is provided to all parties affected by Sexual Misconduct.  

7.2 This includes, but is not limited to, the Complainant, Third Party Reporters, Respondents, and any witnesses.

7.3 Support will normally be offered or coordinated by the SMSU and may include, but is not limited to:

7.3.1 counselling by a qualified counsellor or other mental health professional through the University’s counselling services or otherwise;

7.3.2 taking Reasonable Measures (see section 8 below);

7.3.3 assistance in making a Formal Report;

7.3.4 assistance through the process of an investigation and/or a Disciplinary Process; and

7.3.5 assistance in making a report to the police or other external agency.

8. Reasonable Measures

8.1 Where a Disclosure or Formal Report has been made, the University may take Reasonable Measures. 

8.2 Parties affected by Sexual Misconduct can make a request for Reasonable Measures.  This includes, but is not limited to, a Complainant, Third Party Reporters, Respondents, and any witnesses.

8.3 Reasonable Measures may include but are not limited to:

8.3.1 student housing re-location or short term emergency student housing;

8.3.2 class timetable changes;

8.3.3 temporary remote learning or working arrangements;

8.3.4 other adjustments to working arrangements;

8.3.5 other schedule changes;

8.3.6 academic adjustments;

8.3.7 work placement reassignment;

8.3.8 emergency funding;

8.3.9 wellbeing and safety planning;

8.3.10 measures to minimise the risk of Victimisation;

8.3.11 residential separation arrangements;

8.3.12 temporarily standing down a staff member, other worker or volunteer; or

8.3.13 other safety measures.

8.4 The implementation of Reasonable Measures will be determined on a case-by-case basis, in recognition of the complexities and sensitivities associated with managing Sexual Misconduct, and having regard to University policies and procedures, and the Enterprise Agreement if applicable.

8.5 Any Reasonable Measures implemented as a result of a Disclosure or Formal Report, during an investigation, Disciplinary Process, or investigation by the police or other external agency, is not a determination as to whether the Sexual Misconduct has occurred. 

8.6 In implementing any Reasonable Measures, the University will:

8.6.1 seek to be Trauma-Informed;

8.6.2 consider the risk to the Complainant;

8.6.3 apply the principles of Procedural Fairness;

8.6.4 seek to balance any conflicting rights and interests and ensure Victimisation does not occur;

8.6.5 take into account any relevant external requirements as a result of Sexual Misconduct potentially amounting to a criminal offence;

8.6.6 discuss any proposed Reasonable Measures with affected parties; and

8.6.7 endeavour to negotiate an acceptable outcome for all parties involved.

8.7 At times, meeting the expectations of all parties will be difficult.  If an agreement cannot be reached between all parties about the Reasonable Measures, the following person will make a final decision having considered the position of all relevant parties:

8.7.1 if the Respondent is a student, the Academic Registrar;

8.7.2 if the Respondent is a member of staff covered by the Enterprise Agreement, the ‘Relevant Senior Executive’ for the purposes of the Enterprise Agreement; or

8.7.3 if the Respondent is a member of the UQ Community who is not a student, or a staff member to whom the Enterprise Agreement applies, the Head of Unit responsible for the engagement of the Respondent or other person or body to whom the Respondent reports.

9. Records and reporting

9.1 Confidentiality

9.1.1 Information received as part of a Disclosure or Formal Report will be:

a) recorded and kept confidential, except insofar as is necessary for the University to conduct an investigation or Disciplinary Process, or to comply with law;

b) kept separate from, and not linked to, the enrolment, employment and other University records of the Complainant, the Third Party Reporter, or any witness; and

c) accessible by the person who provided the information if they wish to later use it for the purposes of making a Formal Report or report to the police or other external agency.

9.1.2 For the purposes of establishing patterns of Sexual Misconduct, information received as part of a Disclosure or Formal Report will be anonymised and patterns monitored by the University.  The information may also be used to inform prevention and educational programs under section 3 above.

9.1.3 The University will comply with its Privacy Management – Policy and Privacy Management – Procedures, subject to the provisions of this section 9.

9.2 Reporting and Monitoring

The University will monitor and report to the Vice-Chancellor on a six-monthly basis:

9.2.1 the number and types of Disclosures made;

9.2.2 the number and types of Formal Reports made;

9.2.3 the number of Disclosures and Formal Reports also reported to the police or other external agency;

9.2.4 whether further action was taken in response to Formal Reports, including the number referred for a Disciplinary Process;

9.2.5 the types of Support provided by the SMSU and the number of instances of each;

9.2.6 the types of Reasonable Measures implemented and the number of instances of each;

9.2.7 time taken to respond to Disclosures and Formal Reports;

9.2.8 any feedback provided by Complainants, Respondents, Third Party Reporters and witnesses in relation to the process;

9.2.9 a summary of any patterns that emerge from the monitoring conducted, including any recommendations for further improving the University’s relevant policies and procedures; and

9.2.10 any further statistics it considers necessary from time to time.

10. Ongoing improvement

The University of Queensland will, on a continuing basis, work to build robust, Trauma-Informed best-practice procedures for the response to, and prevention and management of, Sexual Misconduct that may impact the UQ Community.  

Custodians
Academic Registrar
Mr Mark Erickson
Director, Human Resources
Mr Bill Kernahan (Acting)
Director, Student Affairs
Mr Andrew Lee
Custodians
Academic Registrar
Mr Mark Erickson
Director, Human Resources
Mr Bill Kernahan (Acting)
Director, Student Affairs
Mr Andrew Lee