Universities Accord (National Student Ombudsman) Act 2024 (139 of 2024)
Schedule 1 National Student Ombudsman
Part 2 Other amendments
Ombudsman Act 1976
11 After section 35C
Insert:
35D Protection from reprisals - what constitutes taking a reprisal
(1) A person (the first person ) takes a reprisal against another person (the second person ) if:
(a) the first person engages in conduct that:
(i) results in detriment to the second person; or
(ii) consists of, or results in, a threat to cause detriment to the second person; and
(b) when the conduct is engaged in, the first person believes or suspects that the second person:
(i) has made a complaint to the National Student Ombudsman or the Overseas Students Ombudsman under this Act; or
(ii) may have made a complaint to the National Student Ombudsman or the Overseas Students Ombudsman under this Act; or
(iii) proposes to make a complaint to the National Student Ombudsman or the Overseas Students Ombudsman under this Act; or
(iv) could make a complaint to the National Student Ombudsman or the Overseas Students Ombudsman under this Act; and
(c) the belief or suspicion is the reason, or part of the reason, for engaging in the conduct.
(2) Despite subsection (1), a person does not take a reprisal against another person to the extent that the person takes administrative action that is reasonable to protect the other person from detriment.
35E Protection from reprisals - compensation and other orders etc.
Compensation
(1) If the Federal Court or Federal Circuit and Family Court of Australia (Division 2) is satisfied, on the application of a person (the applicant ), that another person (the respondent ) took or is taking a reprisal against the applicant, the Court may:
(a) in any case - make an order requiring the respondent to compensate the applicant for loss, damage or injury as a result of the reprisal; or
(b) if the Court is satisfied that the respondent took or is taking the reprisal against the applicant in connection with the respondent's position as an employee of a private registered provider (within the meaning of Part IIC) or a higher education provider:
(i) make an order requiring the respondent's employerto compensate the applicant for loss, damage or injury as a result of the reprisal; or
(ii) make an order requiring the respondent and the respondent's employer jointly to compensate the applicant for loss, damage or injury as a result of the reprisal; or
(iii) make an order requiring the respondent to compensate the applicant for a part of loss, damage or injury as a result of the reprisal, and make another order requiring the respondent's employer to compensate the applicant for a part of loss, damage or injury as a result of the detrimental conduct.
(2) The Court must not make an order under paragraph (1)(b) if the respondent's employer establishes that it took reasonable precautions, and exercised due diligence, to avoid the reprisal.
(3) If the Court makes an order under subparagraph (1)(b)(ii), the respondent and the respondent's employer are jointly and severally liable to pay the compensation concerned.
Injunctions, apologies and other orders
(4) If the Federal Court or Federal Circuit and Family Court of Australia (Division 2) is satisfied, on the application of a person (the applicant ), that another person (the respondent ) took or is taking a reprisal against the applicant, the Court may make any or all of the following orders:
(a) an order granting an injunction, on such terms as the Court thinks appropriate:
(i) restraining the respondent from taking the reprisal; or
(ii) if the reprisal involves refusing or failing to do something - requiring the respondent to do that thing;
(b) an order requiring the respondent to apologise to the applicant for taking the reprisal;
(c) any other order the Court thinks is appropriate.
(5) If the Federal Court or Federal Circuit and Family Court of Australia (Division 2) has power under subsection (4) to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do anything, the Court may make any other orders (including granting an injunction) that it thinks appropriate against any other person who has:
(a) aided, abetted, counselled or procured the conduct against the applicant; or
(b) induced the conduct against the applicant, whether through threats or promises or otherwise; or
(c) been in any way (directly or indirectly) knowingly concerned in or a party to the conduct against the applicant; or
(d) conspired with others to effect the conduct against the applicant.
Multiple orders
(6) The Federal Court or Federal Circuit and Family Court of Australia (Division 2) may make orders under subsections (1) and (4) in respect of the same conduct.
Burden of proof
(7) In proceedings where a person (the applicant ) seeks an order under this section in relation to another person (the respondent ):
(a) the applicant bears the onus of adducing or pointing to evidence that suggests a reasonable possibility of the matters mentioned in paragraph 35D(1)(a); and
(b) if that onus is discharged - the respondent bears the onus of proving that the claim is not made out.
Costs only if proceedings instituted vexatiously etc.
(8) In proceedings (including an appeal) in a court in relation to a matter arising under this section, the applicant for an order under this section must not be ordered by the court to pay costs incurred by another party to the proceedings, except in accordance with subsection (9).
(9) The applicant may be ordered to pay the costs only if:
(a) the court is satisfied that the applicant instituted the proceedings vexatiously or without reasonable cause; or
(b) the court is satisfied that the applicant's unreasonable act or omission caused the other party to incur the costs.
Interaction between remedies and criminal offences
(10) To avoid doubt, a person may bring proceedings under this section in relation to the taking of a reprisal even if a prosecution for an offence against section 35F in relation to the reprisal has not been brought, or cannot be brought.
35F Protection from reprisals - offence
Taking a reprisal by causing detriment
(1) A person (the first person ) commits an offence in relation to another person (the second person ) if:
(a) the first person engages in conduct; and
(b) engaging in the conduct results in detriment to the second person; and
(c) when the conduct is engaged in, the first person believes or suspects that the second person:
(i) has made a complaint to the National Student Ombudsman or the Overseas Students Ombudsman under this Act; or
(ii) may have made a complaint to the National Student Ombudsman or the Overseas Students Ombudsman under this Act; or
(iii) proposes to make a complaint to the National Student Ombudsman or the Overseas Students Ombudsman under this Act; or
(iv) could make a complaint to the National Student Ombudsman or the Overseas Students Ombudsman under this Act; and
(d) the belief or suspicion is the reason, or part of the reason, for engaging in the conduct.
Penalty: Imprisonment for 6 months.
Taking a reprisal by threat to cause detriment
(2) A person (the first person ) commits an offence in relation to another person (the second person ) if:
(a) the first person engages in conduct; and
(b) engaging in the conduct consists of, or results in, a threat to cause detriment to the second person; and
(c) the first person is reckless as to whether the second person fears that the threat would be carried out; and
(d) when the conduct is engaged in, the first person believes or suspects that the second person:
(i) has made a complaint to the National Student Ombudsman or the Overseas Students Ombudsman under this Act; or
(ii) may have made a complaint to the National Student Ombudsman or the Overseas Students Ombudsman under this Act; or
(iii) proposes to make a complaint to the National Student Ombudsman or the Overseas Students Ombudsman under this Act; or
(iv) could make a complaint to the National Student Ombudsman or the Overseas Students Ombudsman under this Act; and
(e) the belief or suspicion is the reason, or part of the reason, for engaging in the conduct.
Penalty: Imprisonment for 6 months.
(3) Subsection (2) applies whether or not the threat mentioned in paragraph (2)(b) is:
(a) express or implied; or
(b) conditional or unconditional.
Exception - reasonable administrative action
(4) Subsections (1) and (2) do not apply if the conduct engaged in by the first person is administrative action that is reasonable to protect the second person from detriment.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of theCriminal Code).
No requirement to prove matters related to a complaint
(5) In a prosecution for an offence against this section, it is not necessary to prove that the second person:
(a) has made a complaint to the National Student Ombudsman or the Overseas Students Ombudsman under this Act; or
(b) may have made a complaint to the National Student Ombudsman or the Overseas Students Ombudsman under this Act; or
(c) proposes to make a complaint to the National Student Ombudsman or the Overseas Students Ombudsman under this Act; or
(d) could make a complaint to the National Student Ombudsman or the Overseas Students Ombudsman under this Act.
Note 1: The offences against subsections (1) and (2) relate to whether the first person has taken a reprisal (within the meaning of section 35D) against another person.
Note 2: The offence against subsection (1) relates to a reprisal that consists of causing detriment to another person. The offence against subsection (2) relates to a reprisal that involves a threat to cause detriment to another person.
Note 3: Proof of intention, knowledge or recklessness will satisfy a fault element of recklessness (see subsection 5.4(4) of theCriminal Code).