Legal rights threatened by university campus injustice
As exercises in arbitrary overreach go, this one is a shocker. From next year, every university must comply with Jason Clare’s new National Higher Education Code to Prevent and Respond to Gender-Based Violence. The code will be legally enforceable with penalties for noncompliance. Enacted under delegated authority, as part of Clare’s Universities Accord (National Higher Education Code to Prevent and Respond to Gender-based Violence) Act, the code was unveiled with no fanfare on October 15. No wonder. Lurking beneath fine intentions to reduce the incidence of gender-based violence in higher education is the codified vigilante justice of zealots. The brazen disregard for one of our most central values – the presumption of innocence – is evident barely two sections into the 40-page code. It’s surely a bad omen.
Section 2.1 of the code says every university (or “provider”) must “as part of the engagement process, ask prospective employees and members of the governing body to declare whether they have been investigated for an allegation of gender-based violence, or determined to have engaged in conduct that constitutes gender-based violence during the course of their previous employment, or otherwise in a legal process.”
That’s one heck of a wide and arbitrary net. It means universities must interrogate anyone applying for a job or seeking to be considered for a seat on the governing body, as to whether they have been investigated for gender-based violence at any point – even where the allegation was found to be bogus, or lacking evidence to support it.
Under this new code, an unproven allegation will follow anyone seeking a job at a university for the rest of their working lives. Whatever happened to the presumption of innocence? Why wasn’t this question raised by those responsible for the new code? Probably because their single focus was stamping out “gender-based violence” – even at the cost of fundamental rights that keep citizens safe from the use of unchecked powers. These rights of citizens are every bit as important as the right of women to be safe from sexual assault on campus.
Clare’s Education Department says the code was developed “in consultation with victim-survivor advocates, students, the higher education sector, gender-based violence experts, states and territories and relevant Australian government agencies”. The one expert conspicuously missing is a real human rights lawyer looking out for the interests of justice for people wrongly, or mistakenly, accused of “gender-based violence”.
That same increasingly hypothetical lawyer might have pointed out the definitional bomb at the centre of the code. The devilry is indeed in the definition.
The Act defines “gender-based violence” as “any form of physical or non-physical violence, harassment, abuse or threats, based on gender, that results in, or is likely to result in, harm, coercion, control, fear or deprivation of liberty or autonomy”.
This is a potential playground for zealots. For example, “harassment” is not separately defined. If universities defer to the Australian Human Rights Commission’s definition of harassment in their Changing the Course report about sexual abuse and harassment at Australian universities, then we are in for a truly wild ride of campus red tape and injustice. That report defined harassment to include staring, leering, suggestive comments, jokes or intrusive comments about someone’s private life.
It’s true the definition says any such harassment must cause “harm or fear” but what is missing is any limitation of reasonableness. If a person claims to be harmed or to be fearful from even a trivial form of “harassment” – say, a stare – that appears to be enough to warrant questioning of a prospective new staff member at a university.
Our hypothetical lawyer might have pointed to this scenario. Two academics start dating. It ends on a sour note, as some relationships do. The spurned woman makes a bogus allegation of “gender-based violence” against her former partner. There is an investigation. It turns up nothing. Some years later, the male academic wants to move to a different university, perhaps seeking a promotion. Have you ever been investigated for gender-based violence? “Yes,” he says.
Risk-averse universities, run by growing empires of human resources bureaucrats, will ensure the male academic, no matter how brilliant, is seen the door.
Why take the risk? Employing a man who’s been investigated for “gender-based violence” is likely to be information that will be caught somewhere by the enormous web of new reporting obligations. Easier to cull any such applicant from a university job.
If only Clare had paid more attention to the institutional zealotry in his own workplace – Parliament House. The first annual report of the new human resources agency established to change the workplace culture there recorded 30 reported instances of “rape/sexual assault, assault, sexual harassment, harassment, stalking or intimidation”. Once again, the devil was in the detail.
Hidden in footnote four was a huge admission. The annual report said that taking a trauma-informed approach meant recording incidents from “people (who) use the expression ‘sexual assault’ to include a wide range of conduct, from feeling uncomfortable about how a person looked at them to what would be a traditional use of the word rape. It is likely that very few of those matters would actually be allegations of rape.”
Clare’s flawed code is framed around a folly that women don’t lie or even misinterpret male behaviour. The enforcers of these standards – big new bureaucracies in universities and a new federal department bureaucracy – will likely be captured by the same delusion as they wield enormous new powers.
If there is a sexual assault crisis on campus – or elsewhere – that is beyond terrible. But using ridiculously wide catch-all definitions to confect a crisis serves no one, least of all women. Bureaucracies obsessed with faux gender-based violence issues will be distracted from real violence. What better way to make these huge and expensive bureaucracies permanent than a code that ensures a permanent gender violence crisis by adopting subjective, ambiguous definitions and imposing career punishment for allegations alone. The opportunities for weaponisation won’t be lost on some women who do in fact lie, or who have been groomed by the #MeToo zeitgeist to believe a bad joke is actionable harassment.
While university leaders will be quietly complaining about the insane administrative burdens of applying this code, pity the people whose careers and studies will end because no one bothered to say the pendulum has swung too far.
Sydney University Professor Catharine Lumby is a rarity. The long-term advocate for the prevention of violence against women told The Australian: “I am concerned the code mandates employers in the sector must ask employees to declare whether they have been investigated for an allegation of gender-based violence. A mere allegation is not a conviction. No one should have to declare a mere allegation unless it has been investigated and proven.”
Alas, one swallow does not make a summer. With a start date of January 1, 2026, it’s high time university leaders – vice-chancellors, chancellors, members of governing councils, faculty heads, especially at law schools – speak out about the code’s obvious and dangerous overreach.
Their silence to date is the root cause of where we now find ourselves. Sliding into injustice.
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There was never any doubt our society needed to take the sexual harassment and sexual abuse of women more seriously. However, when great passions give the pendulum a big shove, a new form of injustice sets in. Last month, with not a murmur of concern from any quarter, the Albanese government institutionalised contempt for fundamental principles central to a civilised society. In short, campus injustice is coming our way.