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How the misconduct system is failing students

USyd's misconduct system often leaves student welfare by the wayside

A flow chart depicting the misconduct process, from preliminary meeting, to investigation of misconduct, to investigation outcome and notice, to appeals hearing The student misconduct process.

The University of Sydney’s (USyd) misconduct system exists to ensure that students behave in an appropriate and respectful manner. But does the misconduct system treat students appropriately and respectfully? Is the process one that provides comfort for the vulnerable and delivers justice to the deserving, or can the system itself be used for nefarious interpersonal or political ends? Honi uncovers a sinister side to the system where student welfare is left by the wayside.

Defined in the University’s Student Discipline Rule (SDR), misconduct generally amounts to breaches of various USyd policies, covering a wide array of issues ranging from bullying and harassment to academic honesty, and additionally relying on the Code of Conduct for Students. The SDR also stipulates that “prejudic[ing] the good order and government of the University,” and “prejudic[ing] the good name or academic standing of the University” amounts to misconduct.

Much of this policy is vague and therefore open to considerable interpretation. Whilst the majority of University policy is written with benign intentions, opaque wording facilitates an easier route for vexatious and politicised complaints to be levelled at students. This is particularly the case with issues of speech. It is quite a subjective matter to determine what reasonable or non-offensive speech is when this is not discriminatory on identity grounds, such as gender, race or sexual orientation. Moreover, with a considerable rise in dubious complaints, these policies effectively work as speech codes where students may not say things they otherwise would have, ultimately curbing democratic free speech on campus.

Data from the last three years shows a surge in Student Affairs Unit (SAU) cases. Numbers from 2015 and 2016 remained practically unchanged, with 56 and 52 cases respectively. This increased more than fourfold in 2017 with 224 cases. Whilst part of this is attributable to the centralisation of the Special Consideration process in 2016, which saw the SAU begin to deal with issues of contract cheating, falsification of documents, and serious plagiarism, the rise is certainly, in part, due to reports of vexatious and politicised misconduct complaints.

Data from 2017 also shows quite a significant decrease in the percentage of penalties being applied to students, which in part corroborates recent reports of problematic complaints. Additionally, as a result of the centralisation of the Special Consideration process and the dramatic increase in complaints, cases are being drawn out for longer periods of time, negatively impacting complainants and respondents alike, with misconduct cases often taking several months, or close to a year.

Data from 2018 has not yet been disclosed to the Academic Board, however, Director of Education Strategy and Acting Registrar, Peter McCallum told Honi that the information release date would be brought forward to an earlier date than last year. When asked about the figures, McCallum said, “it is too early to say if there is an increase or reduction in misconduct cases. The caseload of complaints has been high, but I don’t yet have figures on how many of the complaints turned into misconduct matters.” Honi has heard that 2018 misconduct cases allegedly surpassed those from 2017 during Semester Two last year.

The Australian Human Rights Commission’s National Report into Sexual Assault and Sexual Harassment at Australian Universities released in 2017 found deeply concerning figures. 94 per cent of students who were sexually harassed did not report the matter to their university, and 87 per cent of students who were sexually assaulted did not report. The report also found that only 6 per cent of students thought their university was doing enough to provide a clear direction on sexual harassment procedures and support services, and 62 per cent had “little or no knowledge” on how to make a formal report or complaint to their university.

Honi can reveal that the SAU dealt with five cases pertaining to sexual assault and harassment in 2017 and none of these resulted in a penalty being imposed on the respondent. In one case, a respondent allegedly appealed their initial finding of misconduct via the Student Disciplinary Appeals Committee (SDAC), where the University then decided the respondent was not guilty of misconduct (in this case, of committing indecent assault) on the balance of probabilities due to a lack of CCTV footage.

USyd’s complaint system allows a complainant to appeal the outcome of a complaint. However, in the case of an investigation for misconduct, an appeal by the complainant is virtually impossible, as the complainant’s appeal rights stop there. Moreover, most complainants are generally not made aware of the reasons for an outcome due to privacy issues. As Peter McCallum put it to Honi, “the complainant has no automatic right to information about the misconduct outcome and no right to appeal it. The only person who can appeal the outcome of a misconduct investigation to the SDAC is the student against whom a finding has been made.”

Applying this to the data above, a survivor of sexual assault or a victim of sexual harassment is not made aware of the reasons as to whether the respondent has been found to have engaged in misconduct or not, and it is only the respondent who can appeal such a decision. USyd’s process contravenes the Tertiary Education Quality and Standards Agency’s (TEQSA) standards as articulated in both the Higher Education Standards Policy and The National Code of Practice, which both contain clauses on appeals. This policy specifies that the complainant gets the outcome in writing in order to have sufficient information to lodge an appeal. TEQSA, as the Australian government agency which regulates and assures the quality of Australia’s higher education sector, has the power to affect a university’s registration and access to federal funding.

In addition to this issue of procedural fairness, the impact that powerful third party non University actors wield over the process has recently become apparent. Last year, NSW Labor MLC Greg Donnelly lobbied the University to suspend 2018 SRC Women’s Officer Madeline Ward for participating in a pro-choice protest on campus. Given SAU misconduct proceedings are meant to be confidential, the fact that details of this case travelled from the complainant to the powerful halls of Macquarie Street, whether directly or indirectly, is a worrying threat to student welfare and democratic protest on campus.

Ward was suspended for a semester for “undermining the good order and government of the University” and the “good name or academic standing of the University”. The suspension was eventually downgraded to a written warning.

James*, who went through a politicised misconduct case that included an investigation, was found not to have engaged in behaviour that amounted to misconduct. He says the process “caused [him] a lot of stress and anxiety, which was no doubt the reason [he] was targeted by the complainant. It’s a great way to bully people and abuse them under a veil of legitimacy.” He added that whilst he was lucky to have “an understanding of the SRC’s legal services, a secure housing situation and a stable income” as well as “professional experience as a support person in similar disciplinary meetings” he believes that “without these aspects of privilege, the outcome may not have been in [his] favour.”

Whilst neither complainant nor respondent, Katie* was called to give evidence for two cases, describing the “constant calls and communication from the University to make times for interviews” as “very stressful”, adding that “whilst [she] was informed that [she] did not have to give evidence, [she] felt obliged to.”

The system has also shown itself to be vulnerable to considerable administrative errors. Billie* was misidentified in a case filed with the SAU. She then had to prove that she was not the person in question, which meant providing evidence that she was not on University grounds at the time. Her proof was her Opal card history showing she was at Redfern Station and could not have walked to USyd fast enough to be in the area at the time where the incident took place.

After a ten month long process which included an investigation, Lisa*  met with Peter McCallum, who informed her she did not breach policy which amounted to misconduct. Three weeks later, she received an email purporting to be from the SAU outlining that a decision had been reached, and was attached to the email. No decision was attached, the email contained a suspicious typo, and the style was generally more informal than previous correspondence. Distressed, she contacted the SAU, worried that the system might have been compromised given the personal nature of her complaint. The SAU replied a day later informing her it was an administrative error. Lisa* remains skeptical of this explanation.

It seems increasingly obvious to those who have experienced the misconduct system firsthand, whether as complainants, respondents or witnesses, that it is in need of serious reform. The students who Honi spoke to offered the following non-exhaustive list of suggestions:

  • The complainant should have the right to be provided with written reasons for any outcome, including a decision not to investigate
  • A free solicitor should be afforded to all students undergoing disciplinary proceedings, or at the very least information about the SRC and SUPRA’s legal services
  • A clearer understanding of how meetings operate, your rights and responsibilities
  • Substantive questions provided prior to the disciplinary meeting
  • “Prejudicing the good order and government of the University” and “prejudicing the good name or academic standing of the University” should not be considered misconduct
  • The SAU should review its current procedures for addressing vexatious and politicised complaints
  • The SAU should review its administrative procedures
  • The University should tighten policies around speech codes to allow for a more democratic campus
  • The Student Code of Conduct should remove “positive standards” for student behaviour. For example, requiring students to have the “highest standards of ethical behaviour.”

Ultimately, the only people benefiting from the current system are the lawyers from WorkDynamic that the University contracts out to undertake investigations.

*Names have been anonymised.