Federal tribunal to determine lecturers’ right to have consensual sexual relations with students

The right of university lecturers to have consensual sexual relations with students is under review by a federal tribunal after Fair Work Commission ruled in one man’s favour.

Monash University, the University of Melbourne and RMIT do not condone sex between academics and students.

The right of university lecturers to have consensual sexual relations with students is under review by a federal tribunal.

An appeal has been granted in the case of ANU lecturer Dr Scott Morrison, who had a naked skinny dip and half-hour intimate kissing session with a female student. He also asked her to have oral sex, but she declined.

The university fired Dr Morrison in 2020 but the Fair Work Commission ruled in February that it was only half an hour and the pair were merely kissing.

The university was told to give Dr Morrison his job back, along with six months’ pay, but it appealed on the basis that his behaviour was “highly inappropriate and unprofessional”.

Dr Morrison had just been promoted to the position of mathematics professor when he was fired over the incident which took place in 2017 when he was 37 and married and the student was 22.

Fair Work Commission told the university to give Professor Scott Morrison his job back.

In the original judgment, Fair Work Commission deputy president Lyndall Dean ruled that “there was no doubt that the interaction was fully consensual and the student knew what she was doing”.

She said the “interaction could not be characterised as a close personal relationship given the whole of the interaction lasted no more than 30 minutes,” she said.

The deputy president said the incident did not breach the university’s ban on student-staff relationships because Dr Morrison had submitted the final marks for the student.

The original hearing also included evidence from a second student, who said Dr Morrison also stripped naked and went swimming during a uni canyoning trip.

The student also said she believed Dr Morrison wanted to pursue a sexual relationship with her.

The commission’s full bench has just allowed an appeal on the basis that the initial finding was based on a number of errors.

“Dr Morrison’s duty at the retreat was to engage in the education of students and to organise the retreat. It was plainly incompatible with this duty to take a young female student down to the beach alone almost immediately after the end of a lecture, to strip naked in front of her and then to engage in sexual intimacy with her,” the full bench ruled.

Such contact included involving Dr Morrison’s wife, who subsequently started working at the university.

The full bench also argued that at the time of the retreat, the student had received her marks for each assessment item in the mathematics course taught by Dr Morrison, but had not yet received her final grades.

One student involved had not yet received her final grades. Picture: AP

“We consider that, on any view, Dr Morrison’s conduct during the beach incident, his failure to disclose this to the university, his subsequent conduct in his dealings with the student, and his lack of honesty in the investigation and review process, constituted a valid reason for his dismissal,” the full bench ruled.

They said it was irrelevant that the encounter was consensual.

RMIT Sociology and Gender Studies Professor Denise Cuthbert said there would always be an “inherent power imbalance” between uni lecturers and students who engaged in a sexual relationship.

“We cannot confidently assume that power, coercion or other factors have not compromised the capacity of the student to give free consent,” Prof Cuthbert said.

“The issue with ANU is that, like many other Australian unis, they don’t have the policy settings quite right. Better, clearer, less ambiguous policy is needed in this space.”

Monash University, the University of Melbourne and RMIT do not condone sex between academics and students, but specify that any romantic or sexual relationships that develop must not breach teachers’ responsibility to prioritise student welfare.

RMIT Sociology and Gender Studies Professor Denise Cuthbert said there would always be an ‘inherent power imbalance’ between uni lecturers and students. Picture: David Geraghty

Zana Bytheway, executive director of JobWatch said the ruling has a national application, but often depended on the facts specific to the case.

“This is a good reminder for all Victorian universities and workplaces to review their Codes of Conduct and Conflict of Interest Policies, and ensure that all their teaching, faculty and administrative staff are aware of their responsibilities towards the care of and conduct towards students and colleagues,” she said.

A spokesman for the ANU welcomed the decision “which allowed the university’s appeal and found there was a valid reason for Dr Morrison’s dismissal, while providing a clear statement of what is acceptable conduct in the course of employment.

“As the Fair Work Commission has declined to fully determine the matter, pending conciliation and further submissions by the parties, the University is unable to comment further while the matter remains unresolved,” he said.

The parties will now attend a conciliation conference at a time yet to be decided.

In 2021 deputy president Dean was prohibited from full bench work until she had undertaken training for calling vaccine mandates “medical apartheid”.