The recent case of University of Queensland & Anor v Y  QCA 216 provides an insight into the prospects of contractual obligations of learning institutions for students who have since left or graduated. The implications of this decision of the Queensland Court of Appeal extends widely to learning, religious and incorporated bodies and prompts important considerations of such bodies in ascertaining liability of persons engaged in misconduct, including criminal misconduct.
BACKGROUND AND FACTS
The relevant facts of this matter are first provided on 2 September 2019 with the University of Queensland (UQ) actioning internal disciplinary proceedings against Y, who had been accused of sexual assault of another student the year prior. This action constituted the provision of an “allegation notice” from UQ’s Secretary of the Disciplinary Board (“the Secretary”) which alleged:
[W]hile enrolled as a student and undertaking a clinical placement in [a certain town] between February 2018 to April 2018, [Y] sexually assaulted [another named student] on 20 April 2018 by subjecting her to unsolicited acts of physical intimacy.
Disciplinary action was sought by UQ by way of a “hearing” before the university’s Disciplinary Board on 19 September 2019. A second letter sent by the Secretary was received by Y on 20 September to particularise the allegations, citing contravention of certain policies that UQ had in place to “[maintain] an environment free from sexual harassment”. This letter was sent in response to lawyers retained by Y who sought a postponement of the Disciplinary Board’s hearing. This proposal was agreed to by UQ and the hearing was postponed to 24 October 2019.
A proceeding in the trial division of the Supreme Court of Queensland was commenced on 23 September 2019 and an application made by Y was heard by Lyons SJA to restrain UQ from holding a hearing in respect of the allegation. Her Honour accepted this application in her judgment delivered 20 November 2020 and subsequently ordered the hearing to not be heard. This order was made pursuant to s 43 of the Judicial Review Act 1991 (Qld).
The current case was heard in the Queensland Court of Appeal, joined together with UQ’s appeal of the trial judge’s decision and the respondent, Y’s, cross-application seeking to have the appeal dismissed.
Y made his cross-application on the grounds that he was no longer a student at the university and therefore no longer susceptible to its disciplinary powers.
UQ is established under the University of Queensland Act 1988 (Qld) (“the UQ Act”) which confers the functions and powers of the university in relation to student conduct. Section 5 of the Act includes the provision of facilities and resources “to provide facilities and resources for the wellbeing of the university’s staff, students and other persons undertaking courses at the university”.
Section 6 of the UQ Act provides the university may “do anything else necessary or convenient to be done for, or in connection with, its functions”.
Subsequently, the regulation of student conduct is left to the university’s Senate which formulates and publishes policies and procedures by which a disciplinary regime is established. Such policies and procedure could form part of a contractual obligation between students and the university as McMurdo JA states:
It is common ground that Y was in some way bound by the relevant policies and procedures, whilst he was an enrolled student. However, the University’s argument, that the [disciplinary] regime remained applicable to a former student, is made more difficult by the absence of a demonstrated contractual or statutory provision which might indicate that a former student remains subject to this process.
The implications of Y’s misconduct were subject, therefore, to UQ’s policies by established principles of contract law.
The point of contention arises from whether Y remains contractually obliged once graduated from the university for conduct alleged during the course of his enrolment. Relevant considerations made in relation to this include common law precedents such as:
R v Wilson; Ex parte Robinson:
- The Full Court held that the disciplinary process of an architect continued to apply even after his resignation from the institute imposing such process.
Reay v Attorney-General:
- The New Zealand Court of Appeal imposed a fine to a former member of an institute in protection of the public interest.
Tadros v Charles Sturt University:
- A false claim of work experience led a university to fail an enrolled student in a subject which was later overturned by the Court.
Lam v University of Sydney
- The university in this case exercised a disciplinary jurisdiction over a misconducting student who had been expelled, however, the only disciplinary proceeding after the student’s expulsion was his appeal.
There were two main considerations which gave reasoning to the orders of the Court, agreed upon between all three justices, namely, McMurdo and Mullins JJA and Boddice J.
Internal criminal jurisdiction
The first consideration was whether the Disciplinary Board of UQ had jurisdiction to hear and make decisions in regard to misconduct of a student which potentially amounted to a criminal offence. The reasoning of the trial judge in this respect was that the Board could not have jurisdiction of criminal matters if the accused student had not been found guilty of or pleaded guilty in criminal proceedings. This could not be determined by university hearing “decision-makers” who were not required to have legal qualification, as was the case for UQ. At trial, Lyons SJA explains:
No doubt this is because of the significant protections afforded by the law to persons who are alleged to have committed criminal offences such as those contained in the Police Powers and Responsibilities Act 2000 (Qld) including specified rights and warnings… the University only has jurisdiction in relation to criminal acts of a sexual nature where the alleged offence is proven.
The Court of Appeal disagreed with this reasoning on the qualification that UQ’s hearings were to proceed not to determine criminal liability but rather certain breaches of its rules, policies and procedures. As McMurdo JA states:
I am unable to accept that in no such case could a hearing of an allegation of this kind be conducted with procedural fairness to the student.
McMurdo JA reasons that such would be applicable to this case that “serious misconduct” or “misconduct” as defined in the provisions of the university’s Sexual Misconduct Policy would amount to the alleged sexual offence and so be within the jurisdiction of the Disciplinary Board that a determination may be made.
Contractual obligation to past or current persons
The second element considered was whether the student was contractually obliged to the policies and procedures of the university once graduated. It was determined that there were “several indications” within relevant policies that a disciplinary process “cannot be imposed upon someone who is no longer an enrolled student.” This decision provides that the “purpose and objectives” of an institution’s policies need be considered to determine whether or not such policies would be imposed. In this case, such a purpose was derived from section 2.2 of its Sexual Misconduct Procedures. This provides that the “UQ Community” is limited to “current UQ students, staff, other workers, volunteers, official visitors [and others].”
The effect of policy in terms of the application to current or previous persons of an institution could therefore be limited to those persons as explicitly named or necessarily implied within the “purpose and objectives” of relevant policies.
Ultimately, the Court of Appeal found that the application made to injunct the hearing of UQ’s Disciplinary Board should have been dismissed at trial. This was on the grounds that the disciplinary proceedings were in the university’s power. However, due to the fact that Y was no longer a student at UQ (and thus outside of the relevant policy’s scope), the appeal against the initial order to restrain the hearing was dismissed.
RELEVANCE TO INSTITUTIONS
This case proves relevant to institutions throughout Queensland, not limited to only universities. Those institutions including schools, religious practices, colleges and others may all be affected by this decision of the Court of Appeal. Where a person voluntarily withdraws from an institution, graduates, resigns or hands in their accreditation, it may make it difficult to progress any disciplinary process, particularly in the absence of a contractual agreement to the contrary. It is important, then, to recognise the role of policies and procedures which provide for a clear and inclusive coverage of those persons intended to be obliged to act within the purposes and objectives of an institution.
Codes of conduct, behavioural management policies or disciplinary regimes all fall within the ambit of a relevant policy or procedure. These policies (and any others which may give obligatory effect to persons within an institution) should form part of a broader contractual obligation. It is crucial that these provisions are referenced in an Enrolment Contract or Accreditation Agreement so as to ensure a broader contractual obligation.
It is equally as important to note that allegations within institutions that could amount to a criminal offence may be internally considered for the purpose of ascertaining a person’s compliance of relevant institutional policy. However, if such internal hearings or considerations are made, procedural fairness must ensue. Legal advice should be sought in order to ensure this procedural fairness.
If you believe your institution or relevant body may require a thorough consideration of specific policies or procedures or guidance on internal disciplinary proceedings, Corney & Lind Lawyers can provide expert legal advice.
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This article was written by Kerry Copley
  Qd R 642.
  NZCA 475.
  NSWSC 1140.
  NSWSCA 184.