House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Hon Mark Dreyfus KC MP and the Minister for Education, the Hon Jason Clare MP)

ABBREVIATIONS USED IN THE EXPLANATORY MEMORANDUM

GENERAL OUTLINE

1. The Universities Accord (National Student Ombudsman) Bill 2024 amends the Ombudsman Act 1976 (Ombudsman Act) to establish a National Student Ombudsman as a new statutory function of the Commonwealth Ombudsman.

2. The National Student Ombudsman will provide a national escalated complaints-handling mechanism for higher education students to complain about the actions of their higher education provider.

3. This Bill gives effect to recommendation 18b of the Final Report of the Australian Universities Accord (the Accord). The Accord was the biggest and broadest review of the higher education sector in 15 years. It sets out a blueprint for higher education reform for the next decade and beyond.

4. The establishment of a National Student Ombudsman is also the first action of the Action Plan Addressing Gender-based Violence in Higher Education (Action Plan), agreed to by all Education Ministers on 23 February 2024. The Action Plan recognises the unique role that higher education providers can and must play in driving the broader social change needed to address gender-based violence, as well as the distinct responsibilities they hold in relation to creating safe study, work, social and living environments.

5. This Bill will establish a National Student Ombudsman that will be independent, impartial and provide higher education students with access to an effective, trauma-informed escalated complaints mechanism.

6. The National Student Ombudsman will be able to handle complaints from higher education students about the actions of Tertiary Education Quality and Standards Agency (TEQSA) registered providers. The National Student Ombudsman will be able to handle complaints about a broad range of issues - from gender-based violence to reasonable adjustments for students living with disability.

7. The National Student Ombudsman will not investigate actions to the extent they involve the exercise of academic judgement (for example a grade that was awarded), actions regarding employment, or complaints relating to vocational education and training (VET).

8. It will adopt a trauma-informed approach to complaint handling and offer restorative engagement processes where appropriate, and bring parties together to resolve complaints through an alternative dispute resolution process as needed.

9. It will have powers to investigate student complaints or investigate an issue on its own motion, including:

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making preliminary inquiries to determine whether a matter should be investigated

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requiring a person or provider to provide information, documents or other records relevant to an investigation

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entering the premises of a higher education provider for the purposes of an investigation

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requiring a person to attend a specified place and answer questions.

10. The National Student Ombudsman will be required to comply with rules of procedural fairness, and before finalising a report that includes criticism of a person, provide the person with an opportunity to respond.

11. It will be an offence to threaten or subject a person to detriment because they have made or propose to make a complaint to the National Student Ombudsman. Students will also be able to apply for a range of civil remedies to prevent or address detrimental action.

12. The National Student Ombudsman will be able to make any recommendations to a higher education provider it sees fit to make, and consider whether a provider has taken appropriate action in response. It will work collaboratively and share information with TEQSA and the Department of Education as regulators for the higher education sector, including notifying those regulators when providers may be in breach of their regulatory obligations.

13. If, in the National Student Ombudsman's view, a provider does not take appropriate action in response to recommendations, it will be able to provide the Minister for Education with a copy of an investigation report for tabling in Parliament.

14. Annual reporting on the National Student Ombudsman's operations and performance of functions - in a manner that protects the privacy of students - will be publicly available and tabled in both Houses of Parliament. This will enhance transparency and publicly hold providers to account.

15. With a student's consent, the National Student Ombudsman will be able to refer a complaint to another body that is better placed to deal with a complaint and provide associated information and documents as part of the referral. It will also have discretion to not deal with a complaint in particular circumstances such as if the complaint is frivolous or vexatious or has already been adequately dealt with by another complaints body.

16. The Bill will also enable a state or territory ombudsman, or another prescribed body, to transfer a complaint to the National Student Ombudsman and provide associated documents and information, or share information relating to a complaint if it is relevant to the role of the National Student Ombudsman, despite anything in another law of the Commonwealth, or a law of a state or territory.

17. The Bill makes minor consequential amendments to other Acts, including the National Anti-Corruption Commission Act 2022, Privacy Act 1988 (Privacy Act) and Tertiary Education Quality and Standards Agency Act 2011 to enable the establishment of the National Student Ombudsman.

18. As part of implementing the Action Plan, the Government has also committed to introducing a National Higher Education Code to Prevent and Respond to Gender-based Violence, which will set best practice requirements for higher education providers in preventing and responding to gender-based violence.

19. The National Student Ombudsman will contribute to greater oversight and accountability of providers and a stronger focus on positive student experiences.

FINANCIAL IMPACT

20. The Government has provided $19.4 million over two years from 2024-25 to establish the National Student Ombudsman as an ongoing function. Funding from 2026-27 is held in the contingency reserve.

CONSULTATION

21. Public consultation was undertaken on the National Student Ombudsman between 22 November 2023 and 31 January 2024, as part of consultation on the Draft Action Plan. This included targeted consultation with students and victim-survivor advocates, gender-based violence experts, the higher education sector, and student accommodation providers.

22. Further targeted consultation was undertaken on the implementation of the National Student Ombudsman in June and July 2024. Consultation sessions were held with the higher education sector; students; organisations that represent culturally and linguistically diverse people, First Nations people, people with disability and LGBTQIA+ people; gender-based violence experts and victim-survivors and their advocates.

23. The Action Plan was agreed to by all Education Ministers on 23 February 2024. The Government is engaging with states and territories on the detailed design and implementation of the National Student Ombudsman.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Universities Accord (National Student Ombudsman) Bill 2024

1. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

2. This Bill amends the Ombudsman Act to establish the National Student Ombudsman as a new statutory function of the Commonwealth Ombudsman.

3. The National Student Ombudsman will provide an independent and impartial national escalated complaints-handling mechanism for higher education students to complain about the actions of their provider.

4. The National Student Ombudsman will have functions including:

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handling complaints from higher education students about actions of their higher education providers, including offering alternative dispute resolution and restorative engagement processes

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investigating issues raised in complaints or of the National Student Ombudsman's own motion

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working with the higher education sector to support and provide advice on best practice complaints-handling and resolution of student complaints.

5. The National Student Ombudsman will have a range of information-gathering and investigatory powers to ensure it can effectively deal with student complaints and investigate actions of higher education providers, including powers to make inquiries to determine how to deal with a complaint or whether a matter should be investigated; require a person to provide relevant information, documents or other records; and enter the premises of a higher education provider for the purposes of an investigation.

6. After completing an investigation, the National Student Ombudsman will be able to make any recommendations to a higher education provider it sees fit to make and consider whether a provider has taken appropriate action in response. It will be empowered to work collaboratively and share information with TEQSA and the Department of Education as regulators for the higher education sector.

7. The Bill will enable the National Student Ombudsman, with a student's consent, to refer complaints and associated information to other bodies that are better placed to deal with the complaint. The Bill will also enable a state or territory ombudsman, or another prescribed Commonwealth, state or territory body, to transfer a complaint to the National Student Ombudsman and provide associated information, or share information relating to a complaint if it is relevant to the role of the National Student Ombudsman.

8. The Bill will also provide strong protections for complainants. It will be an offence to threaten or subject a person to detriment because they have made or propose to make a complaint to the National Student Ombudsman. Students will also be able to apply for a range of civil remedies to prevent or address detrimental action.

9. The National Student Ombudsman will contribute to greater oversight and accountability of providers and a stronger focus on positive student experiences.

Human rights implications

10. This Bill engages the following human rights:

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the right to education - article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)

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the right to an effective remedy - article 2(3) of the International Covenant on Civil and Political Rights (ICCPR)

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the right to a fair trial and hearing - article 14(1) of the ICCPR

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the right to a presumption of innocence - article 14(2) of the ICCPR

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the right to minimum guarantees in criminal proceedings - article 14(3)(g) of the ICCPR

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the prohibition on interference with right to privacy and right to reputation - article 17 of the ICCPR

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the right to freedom of expression - article 19 of the ICCPR.

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the right to equality and non-discrimination - article 26 of the ICCPR

Right to education

11. Article 13 of the ICESCR recognises the important personal, societal, economic and intellectual benefits of education. Article 13 also provides that secondary education in all its different forms, including higher education, shall be made generally available and accessible to all by every appropriate means.

12. The Bill promotes the right to education by establishing the National Student Ombudsman as an independent and impartial body to hear complaints about, and investigate, actions of higher education providers. In doing so, the Bill operates to hold higher education providers to account for their actions and drive a stronger focus on positive student experiences.

13. The National Student Ombudsman's functions would include dealing with complaints about, and conducting investigations into, action of a higher education provider. This could include a broad range of actions such as those relating to student safety and wellbeing, course administration, teaching provision and facilities, disciplinary processes, and support for reasonable adjustments for students with disabilities. In doing so, the National Student Ombudsman would provide greater oversight of higher education providers to ensure students can fully, fairly and safely participate in higher education, and that higher education providers administer their policies equitably and fairly. By providing this independent and impartial complaints pathway for higher education students, the Bill promotes the right to education.

14. The National Student Ombudsman would also serve a broader role in influencing systemic improvements in the higher education sector. The National Student Ombudsman's functions would include conducting own motion investigations, including into systemic and sector-wide issues, and working closely with higher education providers to provide advice on best practice complaints-handling. In this way, the National Student Ombudsman would influence broader improvements across the sector contributing to a better student experience and improving access to and participation in education.

Right to an effective remedy

15. Article 2(3) of the ICCPR guarantees the right to an effective remedy for any violation of rights or freedoms recognised by the ICCPR, including the right to have such a remedy determined by a competent authority.

16. The Bill would promote the right to an effective remedy by:

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allowing students to access a free, independent and impartial complaints-handling body

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empowering the National Student Ombudsman to deal with complaints about, and investigate, a broad range of actions of higher education providers, including those affecting human rights

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supporting oversight of the higher education sector.

17. The establishment of the National Student Ombudsman as an independent and impartial body for higher education students to make complaints - free of cost - about the actions of their higher education provider would promote the right to an effective remedy by ensuring that people who cannot afford to pursue other forms of dispute resolution are not denied an opportunity to have their complaint heard. This would be complemented by the National Student Ombudsman's ability to (subject to the complainant's agreement) deal with a complaint through alternative dispute resolution processes or restorative engagement, which expands complainants' options to have their complaint resolved (section 21AG).

18. Empowering the National Student Ombudsman to consider a broad range of actions of higher education providers would promote the right to an effective remedy by ensuring the National Student Ombudsman could, where appropriate, consider matters related to violation of rights or freedoms. This could include complaints about unsatisfactory actions of providers in relation to discrimination and gender-based violence, for example. The Bill would empower the National Student Ombudsman to make a report following an investigation if it was of the opinion that the action was, among other things, unjust, oppressive or improperly discriminatory.

19. More broadly by ensuring there is an accessible avenue for any improper actions of higher education providers to be addressed and ensuring greater oversight of the higher education sector, the Bill would promote the right to an effective remedy by ensuring issues can be promptly addressed by providers and promoting broader sector-wide improvements.

Right to a fair trial and hearing

20. Article 14(1) of the ICCPR protects the right to a fair and public criminal trial, and a public hearing in civil proceedings. Fair trial and fair hearing rights include the right that all persons are equal before the courts and tribunals and the right to a fair and public hearing before a competent, independent and impartial court or tribunal established by law.

21. The National Student Ombudsman is not a court or tribunal and could not make determinations of criminal or civil liability. However, the National Student Ombudsman will have powers to conduct investigatory processes similar to court or tribunal proceedings. For example, it can compel production of information or documents, require a person to answer questions and examine witnesses.

22. The National Student Ombudsman may also make findings and recommendations in a report following completion of an investigation. This may include findings about whether actions taken by higher education providers were contrary to law, unreasonable, unjust, oppressive, discriminatory or otherwise wrong and any associated recommendations for rectification or change (section 21AV). Unlike a court or tribunal, these findings and recommendations would not be binding.

23. In exercising powers and making reports about actions of higher education providers, the National Student Ombudsman would be required to observe requirements of procedural fairness (sections 21AZD and 21AU respectively).

24. Several other measures of this Bill would engage the right to a fair trial and hearing.

25. Article 14(1) of the ICCPR allows a hearing, or part of a hearing, to be held in private for reasons of morals, public order or national security in a democratic society, or when the interest of the private lives of the parties so requires. The Bill requires investigations to be in private (section 21AU). This is because of the likelihood that sensitive personal and private information will be disclosed in a complaint and any requirement that the information be disclosed publicly may have a negative effect on students' willingness to make complaints to the National Student Ombudsman. The approach to private investigations is consistent with other investigations conducted under the Ombudsman Act and balances the importance of complainants' information being protected with the limited value that conducting public investigations would have on resolution of individuals' complaints. In the event that the National Student Ombudsman considered that information about an investigation should be made public, there are mechanisms in the Bill to do so including the ability to table reports in the Parliament.

26. Article 14(3) of the ICCPR establishes that, in the determination of any criminal charge, everyone shall be entitled to certain minimum guarantees, including not to be compelled to testify against themselves or to confess guilt. The Bill abrogates the privilege against self-incrimination and penalty privilege by providing that a person is not excused from giving information, producing a document or record, or answering questions as required by a notice given by the National Student Ombudsman on the basis it might tend to incriminate that person or expose that person to a civil or administrative penalty (subsections 21AZA(4)-(6)). The abrogation of the privilege against self-incrimination operates together with a use immunity, which limits the use of potentially self-incriminating information, documents, records or answers and derivative material in criminal proceedings (subsection 21AZA(5)). Further detail on the appropriateness of the abrogation of this privilege and the use immunity is set out below (see paragraphs 39 to 42).

27. The Bill also provides that a person is not excused from giving information, producing a document or record, or answering questions in response to a notice on the grounds of legal professional privilege or public interest immunity (subsection 21AZA(7)). The abrogation of these privileges is necessary to ensure the National Student Ombudsman can conduct full, genuine and independent investigations. This approach gives weight to the public benefit of equipping the National Student Ombudsman with appropriate powers of investigation.

28. To the extent that limiting of a person's ability to claim legal professional privilege or public interest immunity may be seen as a limitation on fair hearing rights, this limitation is balanced and proportionate to support the National Student Ombudsman's investigatory and complaints-handling powers.

29. Although the National Student Ombudsman is not a judicial body and is not able to conduct trials, the National Student Ombudsman has powers and functions to deal with and investigate complaints that will uphold fair hearing rights. To the extent that the Bill may limit some fair hearing rights, these limitations are reasonable, necessary and proportionate to the legitimate objective of facilitating full and independent complaints-handling and investigations.

Right to a presumption of innocence

30. Article 14(2) of the ICCPR provides that anyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. The presumption of innocence imposes on the prosecution the burden of proving a criminal charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt.

31. The Bill would limit the right to presumption of innocence because it would place a reversed evidential burden on defendants with respect to the following two offences.

32. It will be an offence for a person to take reprisal action against another person by causing detriment or threatening to cause detriment to that person because that person has made, may have made, proposes to make or could make a complaint to the National Student Ombudsman or the Overseas Students Ombudsman (section 35F). An exception exists if the conduct engaged in by the first person was administrative action that is reasonable to protect the other person from detriment. The reversed evidential burden would require the defendant to prove the conduct was an administrative action reasonably taken to protect the other person from detriment.

33. It will be an offence for a person to refuse or fail to comply with requirements under the Ombudsman Act to attend before the National Student Ombudsman, be sworn or make an affirmation, provide information, answer a question, produce a document or record or give a report (section 36 of the Ombudsman Act as applied by section 21AZC). An exception exists if the person has a reasonable excuse for refusing or failing to do so. The reversed evidential burden would require the defendant to prove reasonable excuse.

34. Limitations on the right to be presumed innocent must be reasonable, necessary and proportionate to achieve a legitimate objective.

35. In line with the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, the offence-specific defences in the Bill are, in both cases, reasonable and necessary. This is because the relevant matters are peculiarly in the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish these matters.

36. The reversed evidential burden provisions are proportionate because, consistent with section 13.3 of the Criminal Code 1995 (Criminal Code), this burden only requires the defendant to adduce or point to evidence suggesting a reasonable possibility that a particular matter exists or does not exist. If the defendant discharges the evidential burden, the prosecution would then have the legal burden of disproving that matter.

37. Although not a criminal matter, the Bill would also establish a civil remedies framework for reprisal actions that places a reversed burden of proof on the respondent (section 35E). On application, the court may order a range of civil remedies against a respondent if satisfied that the respondent took or is taking a reprisal against the applicant.

38. In these circumstances, the applicant would be required to adduce evidence that suggested a reasonable possibility the respondent engaged in conduct resulting in detriment or threat of detriment. If this burden was discharged, the legal burden would shift to the respondent to disprove relevant matters including that they believed or suspected the applicant had made, may have made, proposes to make or could make a complaint and their belief or suspicion is the reason, or part of the reason, for engaging in the conduct. Placing the legal burden of proof on the respondent is appropriate because the respondent would be best placed to adduce evidence as to their state of mind in engaging in the conduct and demonstrating the basis on which action was taken. This will generally be peculiarly within the respondent's knowledge. It would be significantly more difficult and costly for the applicant to have to disprove the defendant's state of mind, than it would be for the defendant to establish.

Minimum guarantees in criminal proceedings - the right against self-incrimination

39. Article 14(3)(g) of the ICCPR provides that in criminal cases, everyone is entitled to a right to be free from self-incrimination, in that a person may not be compelled to testify against themselves or confess to guilt. This right is also embedded in Australian common law and protects a person from being compelled to disclose information or documents that would incriminate themselves.

40. This Bill would abrogate the privilege against self-incrimination by providing that a person is not excused from giving information or producing a document or record to the National Student Ombudsman, or attending before the National Student Ombudsman to answer questions, on the basis it might tend to incriminate the person (section 21AZA). This abrogation is necessary to ensure that the National Student Ombudsman can conduct full and independent investigations and deal with complaints effectively, with access to all relevant information. This approach gives weight to the public benefit in equipping the National Student Ombudsman with appropriate powers of inquiry and investigation.

41. The abrogation of the privilege against self-incrimination operates alongside a limitation on the use of potentially self-incriminating information, documents, records or answers and derivative material in criminal proceedings against a natural person. This material would not be admissible in evidence in most proceedings, with a limited exception in relation to specific offences under sections 137.1, 137.2 and 149.1 of the Criminal Code. This exception allows information given, documents and records produced, and answers given in response to a notice, to be admissible in a very limited range of proceedings related to misleading or obstructing Commonwealth officials in relation to a notice under this section. Allowing such evidence to be admissible in these proceedings is necessary to safeguard the integrity of information being provided to the National Student Ombudsman.

42. The abrogation of the privilege is reasonable, necessary and proportionate to the National Student Ombudsman's function to deal with complaints about, investigate, and report on the actions of higher education providers. These matters are of public importance both in relation to the protection of individual rights and providing assurance that higher education providers are acting lawfully, fairly and with integrity.

Right to freedom from interference with privacy and attacks on reputation

43. Article 17 of the ICCPR prohibits arbitrary or unlawful interference with a person's privacy, family, home or correspondence, and prohibits unlawful attacks on a person's reputation. The right to privacy includes respect for informational privacy, including in relation to storing, using and sharing private information, as well as the right to control the dissemination of personal and private information. To be permissible as a matter of international human rights law, interferences with privacy must be according to law and not arbitrary.

44. The Bill would engage the right to privacy by establishing a framework under which the National Student Ombudsman may collect, use and disclose information (including personal information of complainants). The Bill includes a number of information-gathering provisions that are necessary for the performance of the National Student Ombudsman's functions, including powers to make inquiries as the National Student Ombudsman sees fit (section 21AZ), issue notices to give information, produce documents or records or give answers (section 21AZA) and enter premises and inspect documents for the purpose of an investigation (section 14 of the Ombudsman Act as applied by section 21AZC).

45. The Bill also includes a number of provisions authorising sharing of information with other bodies. These include powers to refer matters raised in complaints to other more appropriate bodies, share information with other bodies for the performance of their functions and exercise of their powers and report on investigations undertaken by the National Student Ombudsman.

46. The National Student Ombudsman's powers to seek, use and further disclose information are directed to the legitimate objective of ensuring complaints by higher education students can be effectively dealt with and independently investigated by the National Student Ombudsman. This objective necessitates empowering the National Student Ombudsman with information-gathering powers.

47. To the extent the Bill may limit the right to privacy, this is lawful and non-arbitrary in light of the safeguards for protecting personal information in the Bill.

48. These safeguards include:

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Complainant consent is embedded as a requirement for disclosure of information contained in a complaint across a number of provisions of the Bill, including requirements that complainants consent to:

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referral of matters raised in a complaint, and associated information, to another Commonwealth, state or territory body (section 21AH)

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referral of a complaint back to a higher education provider (section 21AK)

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inclusion of identifying information in reports of the National Student Ombudsman (section 21AY).

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It is a requirement that any investigations of the National Student Ombudsman be conducted in private (section 21AU).

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It is an offence for an officer of the National Student Ombudsman, including an alternative dispute resolution practitioner, to disclose information, including personal information, unless this is done in the performance of functions or duties (section 35 of the Ombudsman Act as applied by section 21AZ).

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The National Student Ombudsman's ability to further disclose information to other bodies requires that this disclosure be done for the purposes of assisting the body to perform their functions or exercise their powers and identifying information may only be disclosed with the complainant's consent (section 21AZG).

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TEQSA's ability to disclose information, including personal information, to the National Student Ombudsman requires that this disclosure be done for the purposes of assisting the National Student Ombudsman to perform its functions or exercise its powers (item 14, section 194A of the Tertiary Education Quality and Standards Agency Act 2011 (TEQSA Act)).

49. These measures would ensure that complainants can be confident their personal information will be protected by the National Student Ombudsman. Therefore, the right to privacy would be permissibly limited and protected by the measures in the Bill.

Right to freedom of expression

50. Article 19(2) of the ICCPR provides that all people 'shall have the right to freedom of expression'. This includes the freedom to seek, receive and impart information and ideas of all kinds, either orally, in writing or in print or through any other media.

51. Article 19(3) provides that the right to freedom of expression may be limited when necessary to protect the rights or reputation of others, national security, public order, or public health or morals. Limitations must be prescribed by legislation, reasonable, necessary and proportionate to achieving a legitimate objective.

52. The Bill would engage the right to freedom of expression by applying confidentiality obligations to the National Student Ombudsman (section 35 of the Ombudsman Act as applied by section 21AZC). It would be an offence for officers (including former officers) of the National Student Ombudsman to either directly or indirectly record, divulge or communicate any information that was disclosed or obtained under the Ombudsman Act by reason of them being an officer of the National Student Ombudsman. This would be subject to a number of exceptions in relation to disclosure for the performance of functions and exercise of powers of the National Student Ombudsman or with consent of the relevant person.

53. To the extent these confidentiality obligations limit the right to freedom of expression, that limit is reasonable, necessary and proportionate. Confidentiality requirements are necessary to protect the rights and reputation of complainants who may disclose sensitive information in their complaints, as well as higher education providers that may disclose sensitive information in the course of the National Student Ombudsman making inquiries and investigating actions of the provider. In order for the National Student Ombudsman to operate effectively and for people to engage with the complaints-handling process genuinely, it is important that complainants and higher education providers have confidence that information will be protected and handled confidentially. By providing this assurance, the Bill protects the public interest in preserving the integrity of the National Student Ombudsman's investigations and improving accountability of higher education providers.

Right to equality and non-discrimination

54. Article 26 of the ICCPR provides that all persons are equal before the law and are entitled, without discrimination, to the equal protection of the law.

55. The Bill promotes the right to equality and non-discrimination by providing an accessible complaints body for higher education students. This includes prospective, current and former higher education students of TEQSA registered higher education providers, including offshore students. To further support accessibility, the Bill would also allow the National Student Ombudsman to deal with complaints made on behalf of higher education students. This will assist students who may have difficulties accessing the National Student Ombudsman for reasons such as language barriers, disability or trauma.

56. The National Student Ombudsman would be empowered to deal with complaints about, and investigate, a broad range of actions of higher education providers (including matters such as bullying or harassment, special consideration or provision of reasonable adjustments). The National Student Ombudsman would also be empowered to report and make any recommendations it sees fits where these actions are considered, among other things, unreasonable, unjust, oppressive, discriminatory or otherwise wrong.

57. The National Student Ombudsman would also be able to refer matters to other Commonwealth, state or territory bodies where the matter could be more effectively or conveniently dealt with by that other body and the complainant agrees to the referral. This would facilitate a streamlined handling of complaints to ensure that students are able to have their complaint dealt with expeditiously and in a trauma-informed way.

58. By providing equal and broad access to the complaints-handling mechanisms of the National Student Ombudsman, the measures in the Bill support the right to equality and non-discrimination and ensure that higher education providers can be held to account for actions that are discriminatory or otherwise wrong.

Conclusion

59. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The Bill promotes and advances the protection of human rights. To the extent that it may also operate to limit human rights, those limitations are reasonable, necessary and proportionate to achieve a legitimate objective.

NOTES ON CLAUSES

Preliminary

Clause 1 - Short title

1. This clause provides for the short title of the Act to be the Universities Accord (National Student Ombudsman) Act 2024.

Clause 2 - Commencement

2. This clause provides for the commencement of each provision in the Bill, as set out in the table.

3. Item 1 in the table provides that sections 1 to 3 of the Bill and any other provisions not covered by the table commence the day the Bill receives Royal Assent.

4. Item 2 in the table provides that Parts 1 to 3 of Schedule 1 to the Bill, which set out the substantive amendments to establish the National Student Ombudsman, commence on either 1 February 2025 or the day after the end of 1 month beginning on the day the Bill receives Royal Assent, whichever is later.

5. Item 3 in the table provides that Part 4 of Schedule 1 to the Bill, which contains contingent amendments, commences either immediately after the commencement of the substantive provisions of this Bill in item 2 of the table or immediately after the commencement of Part 2 of Schedule 1 to the Intelligence Services Legislation Amendment Bill, whichever is later. The provisions will not commence at all if neither of these things occur.

Clause 3 - Schedules

6. This clause provides that amendments to, or repeal of, legislation contained in the Bill are set out in the Schedules to the Bill and any other item in a Schedule to the Bill has effect according to its terms.

SCHEDULE 1 - National Student Ombudsman

Part 1 - Main amendments

Ombudsman Act 1976

Item 1 - Title

7. This item inserts a reference to the National Student Ombudsman into the long title of the Ombudsman Act, to reflect the establishment of the National Student Ombudsman under that Act.

Item 2 - Subsection 3(1)

8. This item inserts a number of definitions into the Ombudsman Act for the purposes of the Bill.

9. Alternative dispute resolution process means a procedure or service that is for the resolution of disputes, including mediation and conciliation (but not arbitration or court processes or services) and does not involve the exercise of the judicial power of the Commonwealth. The definition supports the ability of the National Student Ombudsman to deal with complaints about action taken by a higher education provider by using an alternative dispute resolution process under new Subdivision D in Division 3 of Part IIF. The examples of mediation and conciliation are non-exhaustive and the National Student Ombudsman could use other forms of alternative dispute resolution where appropriate.

10. The Commonwealth Ombudsman already undertakes mediation, a form of alternative dispute resolution, in their capacity as Private Health Insurance Ombudsman. While it is anticipated the National Student Ombudsman could also undertake mediation, the definition of alternative dispute resolution process in the Bill is not intended to affect the Private Health Insurance Ombudsman's mediation function.

11. Commonwealth entity has the same meaning as in the Public Governance, Performance and Accountability Act 2023. This term is used in provisions of the Bill that permit referral and information-sharing to other bodies by the National Student Ombudsman.

12. Constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies. This term is used in the definition of a constitutional provider, which includes constitutional corporations.

13. Constitutional provider means a:

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constitutional corporation, or

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body corporate that is established by or under a law of the Commonwealth or a Territory.

14. The term constitutional provider is used in the definition of a higher education provider. The definition of constitutional provider is intended to capture bodies that confer or offer a higher education award. While the definition of a constitutional provider in the Bill draws on similar concepts as the definition of a 'higher education provider' within the meaning of the TEQSA Act where possible, definitions in this Bill are not intended to affect any definitions in the TEQSA Act.

15. Engage in conduct means to do an act or omit to do an act. This term is used in provisions of the Bill related to protections from reprisals.

16. Excluded action has the meaning given by subsections 21AD(3) and (4). These subsections provide for a range of excluded actions, including actions in relation to employment or appointment of a person, exercise of academic judgment and VET courses and students. The National Student Ombudsman is not permitted to deal with complaints about excluded actions.

17. Higher Education Department means the Department administered by the Higher Education Minister, currently the Commonwealth Department of Education.

18. Higher Education Minister means the Minister that administers the TEQSA Act, currently the Minister for Education.

19. Higher education officer of a higher education provider means a person who is an officer or employee of the provider or performs services for or on behalf of the provider (other than an officer or employee). This term is intended to capture persons including the higher education principal executive officer and other senior management of a provider, employees of a provider whether full-time, part-time, casual or engaged on contract, and other appointees.

20. Higher education principal executive officer of a higher education provider means a person who has executive responsibility for the operation of the provider. This term is intended to capture the senior leader of the provider regardless of how they are titled.

21. Higher education provider means a constitutional provider that is registered under Part 3 of the TEQSA Act and listed on the National Register of Higher Education Providers under paragraph 198(1)(a) of that Act. This definition draws on the concept of TEQSA registration, as higher education providers are required under Australian law to be registered with TEQSA in order to provide higher education. This will ensure higher education students can complain to the National Student Ombudsman regardless of whether their provider is a public or private higher education institution.

22. Higher education student of a higher education provider means any of the following:

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a student enrolled in any course of study with the higher education provider (other than a student enrolled only in a VET course with the provider)

•

a prospective student in relation to any course of study (other than a VET course) with the higher education provider

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a former student in relation to any course of study (other than a VET course) with the higher education provider.

23. Higher education students would be able to make a complaint to the National Student Ombudsman about actions of their higher education provider under subsection 21AD(1).

24. The definition of higher education student is intended to be broad and capture all students (other than VET students) who are enrolled or were previously enrolled with a higher education provider to ensure both current and former students can complain to the National Student Ombudsman.

25. The definition also captures prospective students of a higher education provider. This is intended to ensure that persons who have applied, or are attempting to apply, to become enrolled, or are in the process of enrolling in, any course of study with a higher education provider (other than in a VET course) are able to make a complaint to the National Student Ombudsman about the actions of that provider.

26. The definition also includes current, former and prospective higher education students living outside of Australia, such as higher education students studying at an overseas campus.

27. The definition does not include students who are enrolled only in a VET course with a higher education provider, including students undertaking individual VET units or competencies. These students are not able to complain to the National Student Ombudsman about the actions of their provider, and would be required to access existing complaints pathways such as state and territory ombudsmen (in relation to technical and further education (TAFE) complaints). Students at providers that offer both VET courses and higher education courses are able to complain to the National Student Ombudsman to the extent that their complaint was not about a VET course.

28. The term 'course of study' is not defined and is intended to take its broad ordinary meaning, to capture higher education students regardless of the type of higher education study undertaken. This includes students undertaking non-award study, enabling or bridging courses for higher education, professional development courses, startup/accelerator programs and micro-credentials with a provider. The note to the definition is intended to provide clarification that this type of study is captured and that a course of study is not limited to conferral of a qualification.

29. National Student Ombudsman Rules means rules made by the Minister administering the Ombudsman Act under section 21AZL.

30. Restorative engagement process means a facilitated process that is for the purpose of a complainant engaging with an officer of the higher education provider that is the subject of their complaint to have the complaint acknowledged. A restorative engagement process does not involve the exercise of the judicial power of the Commonwealth. The Bill provides that the National Student Ombudsman may deal with a complaint by using a restorative engagement process where this is appropriate and the participants are willing.

31. The Commonwealth Ombudsman already undertakes restorative engagement conferences, as defined in the Ombudsman Regulations 2017, in their capacity as Defence Force Ombudsman. While it is anticipated the National Student Ombudsman could undertake similar conferences, the definition of a restorative engagement process in the Bill is not intended to be limited to the use of restorative engagement conferences, nor to affect the Defence Force Ombudsman's restorative engagement conferencing function.

32. State or Territory body is defined to include a Department of State, or an authority or agency, of a state or territory. This term is used throughout the Bill largely in relation to provisions that would facilitate transfer and referral of complaints to and from, and information-sharing with, state or territory bodies.

33. Takes a reprisal is defined at section 35D. This term is used in provisions in the Bill related to protections from reprisals.

34. TEQSA, short for the Tertiary Education Quality and Standards Agency, means the body established by section 132 of the TEQSA Act.

35. TEQSA Act means the Tertiary Education Quality and Standards Agency Act 2011.

36. VET course has the same meaning as in the National Vocational Education and Training Regulator Act 2011. This definition is intended to encompass both individual VET competencies and VET qualifications to ensure that the National Student Ombudsman does not have jurisdiction to consider any action in relation to VET study.

Item 3 - After subsection 3(6D)

37. This item inserts subsection 3(6E) to provide that action taken by a person is deemed to be action taken by a higher education provider if the person takes, or purports to take, the action because they are the principal executive officer or an officer of the provider. This is inclusive of employees and persons who perform services on behalf of the provider, which are captured in the definition of an officer.

38. A person's action is deemed to be action of the higher education provider, regardless of whether or not the action is taken for, in connection with, or incidental to performing services for or on behalf of the provider, or carrying out the person's powers, duties and functions as an employee or officer of the provider. Actions are also deemed to be action of the higher education provider regardless of whether or not the taking of the action is within the person's duties as a principal executive officer or officer of the higher education provider.

39. This item is intended to make clear that action of an officer or employee of a higher education provider can be considered action of the higher education provider itself. This provides certainty that, where a student makes a complaint about actions of a particular person, the Ombudsman can deal with the complaint as if it is a complaint about the higher education provider. As the National Student Ombudsman may receive complaints about improper conduct of providers and their staff, the item provides that it is irrelevant whether the person's actions are undertaken in the course of their role with the provider or consistent with their duties as long as the action was taken, or purported to be taken because they are the principal executive officer or an officer of the provider.

Item 4 - At the end of paragraph 4A(e)

40. This item amends paragraph 4A(e) to include a reference to the functions of the National Student Ombudsman referred to in section 21AC. Paragraph 4A(e) sets out a list of functions that are considered to form part of the purposes of the Office of the Commonwealth Ombudsman for the finance law, within the meaning of the Public Governance, Performance and Accountability Act 2013. This item ensures the functions of the National Student Ombudsman are captured in the purposes of the Office of the Commonwealth Ombudsman more generally.

Item 5 - After Part IIE

41. This item inserts a new Part IIF into the Ombudsman Act to provide for the establishment, and corresponding functions and powers, of the National Student Ombudsman.

Division 1 - Introduction

42. This item inserts a new Division 1, which consists of section 21AA. Section 21AA provides a simplified outline of new Part IIF. The outline is included to assist readers to understand the substantive provisions of new Part IIF. The outline is not intended to be comprehensive and readers should rely on the substantive provisions of the Bill.

Division 2 - Establishment and functions

43. This item inserts a new Division 2 which provides for the establishment of the National Student Ombudsman and set out its statutory functions.

Establishment of the office of National Student Ombudsman

44. Section 21AB provides for the establishment of the office of the National Student Ombudsman. This section provides that the Commonwealth Ombudsman, or any person appointed to act in the role under section 19 of the Ombudsman Act, also holds the office of National Student Ombudsman.

Functions of National Student Ombudsman

45. Section 21AC provides the functions of the National Student Ombudsman. These functions are intended to be broad. The functions provide the National Student Ombudsman with scope to investigate and make recommendations about actions of higher education providers, provide assurance that higher education providers are acting fairly and with integrity, influence systemic improvement in the sector and provide education about best practice complaints-handling.

46. The functions of the National Student Ombudsman consist of:

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dealing with complaints made by, or on behalf of, higher education students about action taken by their higher education provider under Division 3 (paragraph (a))

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conducting investigations, both in response to complaints made by higher education students and on the National Student Ombudsman's own initiative, under Division 4 (paragraph (b))

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reporting and making recommendations under Division 5 (paragraph (c))

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giving higher education providers advice and training about best practice for the handling of complaints made by, or on behalf of, higher education students (paragraph (d))

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any other functions that are conferred on the National Student Ombudsman by the Ombudsman Act or any other Act, or a legislative instrument made under the Ombudsman Act or another Act (paragraph (e)).

Division 3 - Complaints

Subdivision A - Complaints to the National Student Ombudsman

47. This item inserts new Subdivision A which sets out matters related to the making of complaints to the National Student Ombudsman and the transfer of complaints to the National Student Ombudsman.

Making a complaint

48. Section 21AD sets out who can make a complaint to the National Student Ombudsman and the grounds for making a complaint.

49. A complaint against a higher education provider can be made to the National Student Ombudsman by a higher education student of that provider or on behalf of a higher education student of that provider.

50. The ability to make a complaint on behalf of a student implies a requirement of consent. Provided the student has consented to the making of the complaint, this can be done on behalf of the student by another individual or an organisation. In this case, the student can continue to be considered the complainant for the purposes of other provisions in the Bill, including in relation to the requirement that the complainant agree to the action the National Student Ombudsman proposes to take to deal with a complaint (subsection 21AG(2) refers). Where a complaint is made on behalf of a student, the student will be considered to be the complainant.

51. The National Student Ombudsman is also able to accept and deal with anonymous complaints from students, or complaints made under a pseudonym.

52. The grounds for making a complaint allow for a complaint to be made to the National Student Ombudsman about any action taken by a higher education provider other than an excluded action. This is intended to allow the National Student Ombudsman to consider a wide range of complaints about actions of higher education providers which may include, for example, complaints about:

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student safety and welfare, including gender-based violence and other forms of violence, and bullying and harassment

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course administration, such as timeliness and accuracy of information provided to students

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teaching provision and facilities, such as sufficiency of staffing to meet educational, academic and administrative needs of students

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disciplinary processes, such as procedures to address misconduct

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reasonable adjustments for students with disability or experiencing special circumstances

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student accommodation, where owned and/or operated by the provider.

53. A complaint cannot be made about an excluded action, and the National Student Ombudsman is not able to investigate any complaints about excluded actions that it receives. However, if a complaint is made to the National Student Ombudsman that relates only in part to an excluded action, the National Student Ombudsman can effectively sever this matter and consider the remainder of the complaint that relates to a non-excluded action.

54. An excluded action is defined in subsection 21AD(3) as the following actions taken by a higher education provider:

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any action taken with respect to a person employed by a higher education provider, being action taken in relation to that employment (paragraph (a))

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any action taken with respect to the appointment of a person to an office of a higher education provider (paragraph (b))

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any action to the extent that the action involves the exercise of academic judgment (paragraph (c))

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any action to the extent that the action is taken with respect to a VET course or a student who is not a higher education student of the provider (paragraph (d))

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any other kind of action prescribed by the National Student Ombudsman Rules (paragraph (e))

55. Paragraph (a) is intended to prevent the National Student Ombudsman from dealing with complaints concerning the employment of higher education staff, which are more appropriately dealt with by a body with employment law jurisdiction.

56. For example, complaints from students relating to the recruitment, engagement, promotion, termination and transfer of a particular employee or complaints about remuneration or conditions of service would fall within the scope of paragraph (a). In contrast, there may be some matters that are relevant to employees of a provider more generally and which it would be appropriate for the National Student Ombudsman to consider. For example, in response to a complaint from a student about harassment by an employee of a provider, the National Student Ombudsman may wish to consider the mandatory training provided to academic staff or other staff who interact with students. Such matters, which are not related to the employment of a particular individual, are not captured under paragraph (a). Where a person is both a staff member and a student of a higher education provider, the National Student Ombudsman could handle their complaint to the extent it related to the person's role as a student.

57. Paragraph (b) is intended to prevent the National Student Ombudsman from dealing with complaints about the appointment of an individual to an office of a higher education provider. This is intended to capture actions such as the appointment of a Chancellor, Vice-Chancellor or Board or Council members under a university's enabling legislation or other laws, which for similar reasons as for employment matters, it is not appropriate for the National Student Ombudsman to deal with or investigate.

58. Paragraphs 21AD(3)(a) and (b) are modelled on existing exclusions under paragraphs 5(d) and (g) of the Ombudsman Act respectively, which prevent the Commonwealth Ombudsman from investigating similar types of actions of government agencies.

59. Paragraph (c) is intended to prevent the National Student Ombudsman from dealing with complaints about actions that relate to the exercise of academic judgment. The term academic judgment is not defined but is intended to encompass judgments that rely on the opinion of an academic. This includes, for example, decisions about the academic merit of a grade awarded, the content of a curriculum, and teaching and assessment methods. In contrast, there are a range of academic matters that do not require the exercise of academic judgment and which could be the subject of a complaint to the National Student Ombudsman; for example, matters such as granting of special consideration, reasonable adjustments, research supervision, provision and standard of teaching facilities and disciplinary and misconduct procedures. Similarly, policies and procedures about academic matters can be considered by the National Student Ombudsman as the content of these policies and procedures does not involve the exercise of academic judgment.

60. Paragraph (d) excludes actions of a higher education provider to the extent that it is taken with respect to either a VET course or a student who is not a higher education student of the provider. This ensures that complaints cannot be made about the actions of dual sector providers (i.e. providers that offer both higher education and VET courses) where the action relates to a VET course. Likewise, complaints cannot be made about actions of dual sector providers in relation to a student that is not a higher education student and is undertaking a VET course only.

61. Paragraph (e) allows for additional excluded actions to be prescribed by the National Student Ombudsman Rules. This ensures flexibility if it becomes apparent that it is not appropriate for the National Student Ombudsman to deal with complaints about other matters.

62. Subsection 21AD(4) provides for the National Student Ombudsman Rules to prescribe actions that are not excluded actions, despite anything in subsection 21AD(3). This provision gives additional flexibility in the event that the definition of excluded action was inappropriately limiting the matters that students could complain about or affecting the National Student Ombudsman's ability to provide an effective complaint handling process.

Complaints taken to be made to the National Student Ombudsman

63. Section 21AE provides for arrangements to facilitate the effective transfer of complaints from prescribed Commonwealth, state and territory bodies (including state and territory ombudsmen) to the National Student Ombudsman.

64. While the National Student Ombudsman is intended to be the primary escalated complaints-handling pathway for higher education students, it is possible that complaints may continue to be made by students to state and territory ombudsmen and other Commonwealth, state and territory bodies. This ensures that state and territory ombudsmen, and other complaint handling bodies as relevant, can effectively transfer complaints to the National Student Ombudsman.

65. Subsection 21AE(1) provides that a complaint about action taken by a higher education provider that is transferred to the National Student Ombudsman is taken to be a complaint made to the National Student Ombudsman (and able to be dealt with under the Ombudsman Act) if the following circumstances are met:

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the complaint was made to a prescribed body by, or on behalf of, a higher education student of the provider

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the prescribed body transfers the complaint to the National Student Ombudsman in accordance with a law of the Commonwealth, a state or territory.

66. The requirement that a complaint be transferred in accordance with a law of the Commonwealth or a state or territory is met if the complaint was transferred in accordance with subsection 21AE(2) of the Bill or in accordance with provisions permitting transfer of complaints contained in state and territory legislation.

67. Subsection 21AE(2) provides that a prescribed body can transfer a complaint about action taken by a higher education provider that was made to that body by, or on behalf of, a higher education student. A prescribed body could transfer a complaint in whole or in part to the National Student Ombudsman. This would likely depend on the nature of the complaint and whether there were some issues raised in the complaint that were better dealt with by the state or territory body.

68. The higher education student who made the initial complaint to the prescribed body would continue to be considered the complainant for the purposes of a complaint transferred to the National Student Ombudsman. Where a transferred complaint was initially made to a prescribed body on behalf of a higher education student, that higher education student would also continue to be considered the complainant.

69. To support the effective transfer of a complaint, subsection 21AE(3) also authorises a prescribed body to disclose to the National Student Ombudsman any information or documents in the prescribed body's possession or control that relate to the complaint that may be transferred. Disclosure of this information or these documents to the National Student Ombudsman would be permitted for the purpose of transferring, or deciding whether to transfer, the complaint or otherwise assisting the National Student Ombudsman to perform its functions or duties or exercise its powers in relation to action taken by a higher education provider. The note to subsection 21AE(3) clarifies that subsection 21AE(3) constitutes an authorisation for the purposes of the Privacy Act and other laws.

70. Subsection 21AE(4) operates to ensure the complaints can be effectively transferred to the National Student Ombudsman. This subsection provides that the provisions facilitating transfer of complaints and information-sharing at subsections 21AE(2) and (3) have effect despite any other law of the Commonwealth, a state or territory regardless of whether the law is written or unwritten or was enacted before or after the commencement of the Part establishing the National Student Ombudsman. This ensures that the transfer of complaints from Commonwealth, state and territory bodies to the National Student Ombudsman can occur seamlessly and effectively even where there may be legislative limitations that restrict the prescribed body's ability to share information with the National Student Ombudsman. The provisions would only override other laws to the extent required to transfer complaints and associated information to the National Student Ombudsman and for no other purposes.

71. A prescribed body is defined at subsection 21AE(5) to be an Ombudsman of a state, or a Commonwealth entity or state or territory body prescribed by the National Student Ombudsman Rules. The term Ombudsman of a state includes an Ombudsman of a territory because of the application of subsection 3(7B) of the Ombudsman Act, which provides that a reference to an Ombudsman of a state should be read as including a reference to the Australian Capital Territory and the Northern Territory.

Subdivision B - Dealing with complaints

72. This item inserts new Subdivision B, which sets out the ways in which the National Student Ombudsman may handle a complaint once received, including how a complaint can be dealt with, when a complaint can be referred to another body and when the National Student Ombudsman may use their discretion to decide not to deal with a complaint.

Initial receipt of complaint

73. Section 21AF provides that, on initial receipt of a complaint, the National Student Ombudsman may inform the relevant higher education provider of the nature of the complaint and exercise its powers to make inquiries in relation to the provider or give a notice in relation to the provider requiring production of information, documents, records or answering of questions.

Ways of dealing with complaints

74. Section 21AG sets out the ways in which the National Student Ombudsman can deal with a complaint made about action taken by a higher education provider. The National Student Ombudsman may:

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refer the complaint back to the higher education provider under Subdivision C

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use an alternative dispute resolution process under Subdivision D to attempt to resolve the complaint

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use a restorative engagement process under Subdivision E

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conduct an investigation of the complaint under Division 4.

75. The National Student Ombudsman cannot conduct appeals or merits review of a decision.

76. The ways of dealing with a complaint are not intended to be mutually exclusive and the National Student Ombudsman may use one or more of the above methods to resolve the complaint, subject to the complainant's agreement to do so.

77. The National Student Ombudsman is not permitted to take any action to deal with a complaint unless the complainant agrees to that particular action being taken.

78. Similarly, the National Student Ombudsman is not permitted to take, or continue to take, action if the complainant withdrew their complaint. However, if the complaint had revealed a potential issue of sufficient seriousness to justify an own motion investigation, the National Student Ombudsman could commence such an investigation even though the complaint had been withdrawn. Importantly, privacy protections (including the requirement for complainant consent) would apply in relation to how the National Student Ombudsman could deal with any personal information that the student had disclosed in their complaint.

79. The National Student Ombudsman is also not permitted to take any action to deal with a complaint if the complaint was about an excluded action (as outlined above).

Referral of matters raised in complaints

80. Section 21AH provides for the circumstances in which the National Student Ombudsman can refer matters that have been raised in complaints to other Commonwealth, state and territory bodies (including a Department of State, or an authority or agency of a state or territory).

81. The National Student Ombudsman can refer a matter raised in a complaint to another Commonwealth entity or a state or territory body if, in the National Student Ombudsman's opinion, the matter could be dealt with more effectively or conveniently by the other body and the complainant agrees to the matter being referred.

82. If a matter was referred under this section, the National Student Ombudsman is required to notify the complainant in writing and give the other body any information or documents in the National Student Ombudsman's possession or control that relate to the complaint.

83. There are a range of matters that may be raised in complaints, including human rights issues or allegations of corruption or serious misconduct, that may be more appropriately dealt with by relevant Commonwealth, state or territory bodies. This section provides the National Student Ombudsman with broad discretion to refer those matters to a more appropriate body for consideration and potential investigation.

84. Depending on the nature of the complaint, the National Student Ombudsman can refer an entire complaint or parts of a complaint to another body. If an entire complaint was referred, it would then be open to the National Student Ombudsman to exercise their discretion under paragraph 21AJ(e) to decide not to investigate the complaint further.

Deciding not to deal with a complaint

85. Section 21AJ provides for the circumstances in which the National Student Ombudsman may decide not to deal with, or not to continue dealing with, a complaint. The National Student Ombudsman may exercise their discretion not to deal with a complaint if, in their opinion:

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the complaint is frivolous, vexatious or not made in good faith (paragraph (a))

•

the complainant does not have sufficient interest in the subject matter of the complaint (paragraph (b))

•

the complainant has not yet raised the subject matter of the complaint with the higher education provider (paragraph (c))

•

the action complained of is an excluded action (paragraph (d))

•

the complaint has been, is being, or is to be dealt with by another Commonwealth entity, an Ombudsman of a state (including an Ombudsman of a territory) or a state or territory body (paragraph (e))

•

the action has been, is being, or is to be reviewed by a court or tribunal (paragraph (f))

•

dealing with or continuing to deal with the complaint is not warranted having regard to all the circumstances (paragraph (g)).

86. The circumstances in paragraphs (a) and (b) broadly replicate existing grounds for the Commonwealth Ombudsman to decide not to investigate a complaint, to ensure that complaints are made in good faith and by persons directly affected by the action complained of.

87. Paragraph (c) permits the National Student Ombudsman to decide not to deal with a complaint if the student had not already complained to their provider. The National Student Ombudsman is generally intended to be an escalated complaints-handling mechanism for students who have already complained to their provider and are unsatisfied with the response received. It is not a requirement that a student complain to their higher education provider before seeking to access the National Student Ombudsman and in some cases, there may be compelling reasons to complain directly to the National Student Ombudsman. However, the general expectation is that students will seek to resolve their complaint with their provider before complaining to the National Student Ombudsman unless there are reasons for not doing so.

88. Paragraph (d) permits the National Student Ombudsman to decide not to deal with a complaint if the action complained of is an excluded action. This provision supports section 21AG which provides that the National Student Ombudsman must not take action to deal with a complaint if it is about an excluded action, and provides the National Student Ombudsman with the ability to close such a complaint.

89. Paragraph (e) permits the National Student Ombudsman to decide not to deal with a complaint where it had been, is being, or is to be dealt with by another body, whether at Commonwealth, state or territory level. In recognition that there may be overlapping complaint-handling jurisdiction in relation to complaints about higher education providers, this provision ensures that there is not double handling, or forum shopping, in relation to such complaints.

90. Paragraph (f) permits the National Student Ombudsman to decide not to deal with a complaint where the action has been, is being or is to be reviewed by a court or tribunal. It is not appropriate for the National Student Ombudsman to deal with complaints that have already been decided by a court or tribunal or that will be decided by a court or tribunal. However, there may be circumstances where a student has a right to cause the action of a higher education provider to be reviewed by a court or tribunal and does not wish to exercise that right, particularly in relation to issues of gender-based violence where such a process may be re-traumatising. In these circumstances, the National Student Ombudsman can deal with the complaint.

91. Paragraph (g) provides for the National Student Ombudsman to decide not to deal with a complaint if this is warranted in all the circumstances. This provision is consistent with existing grounds for the Commonwealth Ombudsman to decide not to investigate a complaint. This provision is broad and ensures that the National Student Ombudsman can exercise their judgment as to whether a complaint can and should be dealt with.

92. For example, while there is no time limit on when a complaint must be made, there may be circumstances where such a significant amount of time has elapsed since the action complained of occurred that an investigation would not be possible because relevant records are not available and restorative engagement would not achieve an effective outcome for the complainant. In these circumstances, the National Student Ombudsman may decide to exercise their discretion not to deal with the complaint.

93. Decisions of the National Student Ombudsman under section 21AJ not to deal with a complaint would not be subject to merits review. Consistent with the Administrative Review Council's publication What decisions should be subject to merits review?, it would not be appropriate for these decisions to be subject to merits review as they are decisions that relate to the allocation of a finite resource (being National Student Ombudsman complaints-handling resourcing) from which all potential claims for a share of the resource cannot be met. As allocation decisions will affect the National Student Ombudsman's ability to handle other complaints, it is appropriate that the National Student Ombudsman be empowered to direct their efforts to complaints of higher order importance.

Subdivision C - Referral of complaint to higher education provider

94. This item inserts new Subdivision C which sets out when the National Student Ombudsman may refer a complaint back to a higher education provider for investigation and the process to be followed after such a referral.

Referral to the subject of the complaint

95. Section 21AK provides that the National Student Ombudsman may refer a complaint about the action of a higher education provider back to that provider.

96. In referring the complaint, the National Student Ombudsman may request that the provider investigate the complaint, and report back within a specified time period on the outcome of the investigation and action proposed to be taken as a result of the investigation. The note to section 21AK clarifies that the National Student Ombudsman must have the complainant's agreement to refer a complaint to the provider.

97. This section is intended to permit the National Student Ombudsman to require providers to investigate a complaint where this is likely to be more effective or appropriate than the National Student Ombudsman dealing with, or continuing to deal with, a complaint. For example, this provision may be used where a student has complained to their provider and there has been unreasonable delay in consideration of the complaint, or the provider appears not to have considered the complaint. In these circumstances, the National Student Ombudsman can refer the complaint to the provider and require the provider to investigate and report back on the outcome in a timely manner.

Recommendations as a result of referral of complaint to higher education provider

98. Section 21AL provides that, after receiving a report from a provider in relation to the investigation of a complaint referred under section 21AK, the National Student Ombudsman may make any recommendations to the principal executive officer of that provider that the National Student Ombudsman sees fit to make.

99. The National Student Ombudsman's ability to make recommendations following receipt of a report from a provider is intended to replicate their ability to make recommendations under new paragraph 21AV(1)(c) following completion of an investigation. This ensures the National Student Ombudsman does not need to commence an own motion investigation into the handling of the referred complaint or that a student does not need to complain a second time about their provider's actions in the event there are perceived deficiencies with the provider's handling of a referred complaint.

Subdivision D - Alternative dispute resolution

100. This item inserts a new Subdivision D which sets out how the National Student Ombudsman may use alternative dispute resolution to deal with a complaint about action taken by a higher education provider and the conduct of such an alternative dispute resolution process.

Conducting an alternative dispute resolution process

101. Section 21AM provides that the National Student Ombudsman may try to settle a complaint by using an alternative dispute resolution process conducted by either the National Student Ombudsman or a person engaged by the Commonwealth Ombudsman under new section 31A to conduct an alternative dispute resolution process.

102. The ability for the Commonwealth Ombudsman to engage a person to conduct an alternative dispute resolution process ensures that alternative dispute resolution processes can be conducted by specialist practitioners with appropriate expertise and experience.

103. A person's participation in alternative dispute resolution may be voluntary or required by a direction given to the person by the National Student Ombudsman under section 21AN (which permits a direction to be given to a higher education provider). A complainant cannot be directed to participate in an alternative dispute resolution process and their participation must always be voluntary. The note to subsection 21AM(2) clarifies that the National Student Ombudsman must have the complainant's agreement to use alternative dispute resolution and cannot continue if the complaint is withdrawn.

104. Parties directed to participate in an alternative dispute resolution process are required to do so in good faith. This includes participating genuinely and transparently and observing requirements of confidentiality.

105. Section 21AM also limits liability for things done by an alternative dispute resolution practitioner in an alternative dispute resolution process. Subject to the existing confidentiality requirements in section 35 of the Ombudsman Act, a person engaged to conduct an alternative dispute resolution process would not be personally liable to an action or other proceedings for damages in relation to anything done, or omitted to be done, reasonably or in good faith, in or in relation to the conduct of the alternative dispute resolution process.

106. Limiting the liability of alternative dispute resolution practitioners is necessary to retain the integrity and effectiveness of the alternative dispute resolution process and to provide clear protections for practitioners. If practitioners were subject to liability for acts done reasonably or in good faith, this may undermine the effectiveness of an alternative dispute resolution process and prevent the resolution of complaints where alternative dispute resolution is the most appropriate option. The scope of acts done in good faith would depend on the circumstances of the alternative dispute resolution process, but an act would not be in good faith if, for example, it was done arbitrarily or for an irrelevant purpose, or involved dishonest conduct or conduct without regard to requirements of impartiality or confidentiality.

Participation in alternative dispute resolution process may be compulsory

107. Section 21AN provides that the National Student Ombudsman may direct a higher education provider to participate in an alternative dispute resolution process.

108. This section ensures that, if the National Student Ombudsman considers use of an alternative dispute resolution process is appropriate and a complainant has agreed to participate, the process cannot be frustrated or delayed by a higher education provider refusing to participate.

109. Subsection 21AN(2) provides that the National Student Ombudsman Rules may prescribe matters to which the National Student Ombudsman must have regard when deciding whether or not to give a direction to a higher education provider.

110. Subsection 21AN(3) sets outs a range of procedural requirements for the giving of directions, including that the direction be in writing, name either or both of the higher education provider subject to the complaint or a higher education officer of the provider, be given to those named, and specify the time and place of the alternative dispute resolution process.

111. Subsection 21AN(4) provides that a direction is not a legislative instrument. This is included to assist readers and clarify that a direction is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003 (which means that it does not need to be registered or published).

112. Subsection 21AN(5) provides that it is an offence for a person who is directed to participate in an alternative dispute resolution process by the National Student Ombudsman under subsection 21AN(1) to fail to participate in all or part of that process, provided the other party attends, or was willing to attend, the process. The offence is punishable by a maximum penalty of 10 penalty units. This penalty is consistent with the penalty attached to a similar offence in section 20Y of the Ombudsman Act for failing to participate in mediation as directed by the Private Health Insurance Ombudsman.

113. The inclusion of the offence ensures that a direction from the National Student Ombudsman can be appropriately enforced and a higher education provider directed to participate cannot seek to frustrate an alternative dispute resolution process where the complainant is willing to participate.

Ceasing alternative dispute resolution process

114. Section 21AP sets out matters in relation to ceasing an alternative dispute resolution process.

115. Subsection 21AP(1) applies in relation to a compulsory dispute resolution process in which a higher education provider is directed to participate. This subsection provides that the process ceases if the higher education provider and the complainant agree to settle the matter or if the National Student Ombudsman concludes that the matter cannot be settled by using an alternative dispute resolution process. This is intended to provide certainty that matters involving participation in a compulsory dispute resolution process can be closed if they are settled, and that matters can be dealt with by other methods if the National Student Ombudsman considers that the alternative dispute resolution process has broken down or is proving ineffective.

116. Under subsection 21AP(2), the National Student Ombudsman Rules can prescribe matters that the National Student Ombudsman must have regard to before concluding that a matter cannot be settled by using a compulsory alternative dispute resolution process.

117. Subsection 21AP(3) applies in relation to both compulsory and voluntary alternative dispute resolution processes. This subsection requires a person engaged to conduct an alternative dispute resolution process to report to the National Student Ombudsman about the process as soon as practicable after the process is, or should have been, conducted. The person would be required to report on whether or not the alternative dispute resolution process was conducted and, depending on the outcome of the process, the reasons for failure of the process or the terms of the settlement (including any action to be taken).

Admissibility of things said in alternative dispute resolution process

118. Section 21AQ deals with the admissibility in evidence of anything said or done during participation in an alternative dispute resolution process.

119. Evidence of anything said, or any admission made, during participation in an alternative dispute resolution process is not admissible in any court (whether exercising federal jurisdiction or not) or in any proceedings before a person authorised by a Commonwealth, state or territory law, or by consent of the parties to the process, to hear evidence. This provision applies regardless of whether the higher education provider's participation in the process was voluntary or directed.

120. Limiting the admissibility of evidence in relation to an alternative dispute resolution process is appropriate and necessary to support the effectiveness of the process. Parties are significantly less likely to engage effectively with an alternative dispute resolution process if things said or admissions made could be used against them in evidence, which could seriously undermine the prospects of success of an alternative dispute resolution process.

Subdivision E - Restorative engagement process

121. This item inserts a new Subdivision E which provides for the conduct of restorative engagement processes by the National Student Ombudsman.

Conducting a restorative engagement process

122. Section 21AR provides that the National Student Ombudsman may conduct a restorative engagement process in relation to a complaint made to the National Student Ombudsman about an action taken by a higher education provider.

123. A person's participation in a restorative engagement process is voluntary, including both the complainant and a higher education provider. The National Student Ombudsman is required to have the complainant's agreement to conduct a restorative engagement process and to cease the process if the complaint is withdrawn.

124. The conduct of a restorative engagement process is intended to bring together the student and a senior leader of the relevant higher education provider to enable the student to provide their personal account of the action complained of, the harm caused and its impact, and to receive acknowledgement of their experience by the provider. While restorative engagement would not be appropriate in all cases, this approach may be used, for example, in relation to serious historical complaints or complaints about gender-based violence.

Admissibility of things said in restorative engagement process

125. Section 21AS deals with the admissibility in evidence of anything said or done during participation in a restorative engagement process. This provision replicates the provision relating to admissibility of evidence in alternative dispute resolution at section 21AQ and provide that evidence of anything said, or any admission made, during participation in a restorative engagement process is not admissible in any court (whether exercising federal jurisdiction or not) or in any proceedings before a person authorised by a Commonwealth, state or territory law, or by consent of the parties to the process, to hear evidence.

126. As for alternative dispute resolution, limiting the admissibility of evidence in relation to a restorative engagement process is appropriate and necessary to support the effectiveness of the process. Parties would be less likely to engage with restorative engagement transparently and in good faith if things said or admissions made could be used against them in evidence (particularly as restorative engagement will generally involve an acknowledgment of the harm caused by a provider's actions). This could seriously undermine the underpinning principles and the prospects of success of a restorative engagement process.

Division 4 - Investigations

127. This item inserts a new Division 4 which provides for the circumstances in which the National Student Ombudsman can investigate a complaint and the conduct of such investigations.

Investigations

128. Section 21AT provides that the National Student Ombudsman may investigate action taken by a higher education provider on receipt of a complaint or on the National Student Ombudsman's own initiative. The National Student Ombudsman cannot investigate an excluded action.

129. The National Student Ombudsman has broad discretion to undertake own motion investigations in relation to the action of a higher education provider or providers. This includes, for example, investigations into broader issues raised with the National Student Ombudsman by multiple complainants or in media reporting. Own motion investigations can be undertaken in relation to both the action of a single provider and systemic issues in the sector across multiple providers.

Conduct of investigations

130. Section 21AU provides for the conduct of investigations of complaints and own motion investigations under section 21AT, including a range of procedural fairness requirements for providers.

131. Subsection 21AU(1) requires that, before the National Student Ombudsman commences an investigation in relation to a higher education provider, they must inform the principal executive officer of the provider about the investigation. This ensures fairness for providers, who are entitled to be made aware of any investigations being undertaken into their actions.

132. Subsection 21AU(2) provides that an investigation must be conducted in private and, subject to the Ombudsman Act, in the manner the National Student Ombudsman sees fit. It is appropriate that investigations be conducted in private in order to prevent a provider being prejudiced, particularly suffering reputational damage, before the outcome of the investigation is known. This requirement is consistent with the practice of Commonwealth Ombudsman investigations under existing subsection 8(2) of the Ombudsman Act. The Bill provides for a number of reporting mechanisms which allows for information about a provider to be made public, where appropriate, following completion of an investigation.

133. Subsection 21AU(3) requires the National Student Ombudsman to provide a higher education provider or an officer with the opportunity to make submissions before completing an investigation if the National Student Ombudsman was proposing to make a report that set out opinions that were critical, whether expressly or by implication, of the higher education provider or officer. The National Student Ombudsman could not make a report unless they had afforded this opportunity to the provider or officer before finalising the investigation. This ensures procedural fairness for higher education providers and their staff and provide them a right to be heard before the National Student Ombudsman makes adverse findings.

Division 5 - Reporting by the National Student Ombudsman

134. This item inserts a new Division 5 which sets out arrangements for reporting for the National Student Ombudsman, including investigation reports and annual reports.

Reports to higher education providers

135. Section 21AV provides requirements for the National Student Ombudsman to report on investigations into action taken by a higher education provider. This provision is consistent with the reporting provisions for other statutory offices established under the Ombudsman Act, including the Overseas Students Ombudsman.

136. Subsections 21AV(1) and (2) taken together require the National Student Ombudsman to report to the relevant higher education provider on completion of an investigation, provided certain thresholds are met. These thresholds require that a report be given to a provider if the National Student Ombudsman has completed an investigation and is of the opinion that:

•

action taken appeared to be contrary to law, was unreasonable, unjust, oppressive or improperly discriminatory, or was otherwise in all the circumstances wrong, and

•

some particular action could and should be taken to rectify, mitigate or alter the effects of the action taken, a policy or practice on which the action was taken was based should be altered, reasons for taking the action were not given but should have been given, or any other thing should be done in relation to the action taken.

137. The ability for the National Student Ombudsman to report on actions that are contrary to law, unreasonable, unjust, oppressive, improperly discriminatory or wrong is intended to allow for broad consideration of the appropriateness of action taken by a higher education provider. This could capture, for example, actions that are based on a mistake of law or fact or actions in accordance with unfair or unreasonable rules or practices.

138. The effect of this section would be to require the National Student Ombudsman to provide an investigation report to a provider where adverse findings had been made about the action taken by the provider and the National Student Ombudsman considered that steps should be taken in relation to the action. The National Student Ombudsman would not be required to prepare a report if the above thresholds were not met. This is because there is limited value in preparing a report if the investigation has not resulted in adverse findings nor any recommendations for change. Where a report is not prepared, the National Student Ombudsman would still be able to make comments or suggestions to the provider under existing section 12(4) of the Ombudsman Act.

139. Under subsection 21AV(3), when providing a report to a higher education provider, the National Student Ombudsman is required to include reasons for the opinions contained in the report. It would also be open to the National Student Ombudsman to also include any recommendations that they saw fit to make to the provider. This could include recommendations in relation to the specific action complained of, for example, that the provider reconsider a decision, re-run a process, offer an apology or provide additional support or adjustments for a student. It could also include recommendations in relation to improvements to broader policies and procedures or systemic issues.

140. Subsection 21AV(4) provides that, when giving a report to a provider, the National Student Ombudsman may ask the provider to give particulars of any action that the provider proposes to take with respect to the matters and recommendations in the report, within a specified time period. This ensures the National Student Ombudsman can conduct follow up and monitor implementation in relation to their reports and recommendations. The ability to request that information be provided in a specific time period helps to ensure that higher education providers consider and implement recommendations in a timely manner.

141. Subsection 21AV(5) allows a higher education provider to give the National Student Ombudsman comments on the report. This ensures a higher education provider has the opportunity to respond to any findings or recommendations in a report and provide this response to the National Student Ombudsman. Where a copy of the report is given to any other person or body under other provisions of the Bill, it is a requirement that comments from the provider (if any) also be given alongside the report.

142. Subsection 21AV(6) allows for copies of reports to be given to other relevant people. Under this subsection, after having given a copy of the report to a provider, the National Student Ombudsman may provide a copy of the report and any comments given by the provider to any of the following:

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the Higher Education Minister

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the Secretary of the Higher Education Department

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the Chief Executive Officer of TEQSA.

143. It is expected that the National Student Ombudsman would give a provider reasonable time to give comments in response to the report before providing a copy of the report to any of these persons.

144. Whether to give a report to someone other than the provider would be at the discretion of the National Student Ombudsman. There are a range of reasons why it may be appropriate to do so, including where there are broad systemic issues relevant to the Minister and Department's responsibilities or regulatory or non-compliance issues relevant to TEQSA's or the Higher Education Department's responsibilities. The ability for the National Student Ombudsman to provide reports would supplement the authorisations at section 21AZG for information-sharing with TEQSA and the Higher Education Department.

Higher Education Minister to table reports about higher education providers in Parliament

145. Section 21AW provides tabling requirements for reports of the National Student Ombudsman in relation to higher education providers.

146. If the National Student Ombudsman has given a report to a provider under section 21AV and, in the opinion of the National Student Ombudsman, the provider has not taken adequate and appropriate action in respect of the matters and recommendations in the report within a reasonable time after receiving the report, the National Student Ombudsman may:

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give a copy of the report and the provider's comments (if any) to the Higher Education Minister, and

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request the Higher Education Minister table the report and comments before each House of Parliament.

147. Whether action is adequate and appropriate would be a matter for the National Student Ombudsman, but would generally include consideration of whether the provider had taken any genuine steps or efforts to implement the recommendations and whether these efforts were consistent with the intent of the recommendations.

148. If the National Student Ombudsman requested that the Higher Education Minister table the report and any comments, the Higher Education Minister would not have discretion to refuse this request. The Higher Education Minister would be required to cause the report and any provider comments to be tabled in each House of Parliament within 15 sitting days of that House after the Minister receives the request from the National Student Ombudsman.

149. As the National Student Ombudsman is not able to override decisions of higher education providers or compel providers to comply with recommendations, this section ensures that there is an escalation pathway to support accountability of providers in the event they do not comply, or engage genuinely, with the recommendations of the National Student Ombudsman.

Reports of the National Student Ombudsman

150. Section 21AX sets out a number of requirements in relation to the annual and other reporting requirements of the National Student Ombudsman.

Annual and other reports

151. Subsection 21AX(1) requires the National Student Ombudsman to give an annual report to the Minister administering the Ombudsman Act on the operations of the National Student Ombudsman. The reporting period is the financial year. The National Student Ombudsman must report as soon as practicable after 30 June each year.

152. Subsection 21AX(2) allows the National Student Ombudsman to give additional reports to the Minister administering the Ombudsman Act on operations during a part of a year or the exercise of powers or performance of functions of the National Student Ombudsman. This is intended to provide the National Student Ombudsman with flexibility to report on other relevant matters as they arise.

153. Subsection 21AX(3) allows the National Student Ombudsman to provide copies of annual and other reports under this section to the Higher Education Minister or the Secretary of the Higher Education Department.

154. The reporting provisions under this section do not affect the powers and duties of the National Student Ombudsman under sections 21AV and 21AW, which relate to investigation reports about providers.

Tabling and inclusion in other reports

155. Subsection 21AX(5) provides tabling requirements for annual and other reports under subsections 21AX(2) and (3). The Minister administering the Ombudsman Act must table the reports before each House of Parliament within 15 sitting days of that House after receiving the report.

156. Subsection 21AX(6) allows a report relating to the operations of the National Student Ombudsman during a period (reports under subsection 21AX(1) and paragraph 21AX(2)(a)) to be included in the general annual report of the Commonwealth Ombudsman. This ensures the administrative processes for reporting can be streamlined as the National Student Ombudsman will be a function of the Commonwealth Ombudsman.

Content of report

157. Subsection 21AX(7) sets out content that must be included in the annual report of the National Student Ombudsman.

158. The content that must be included in an annual report is linked to the ways that the National Student Ombudsman would be able to deal with a complaint (referring back to a provider, using an alternative dispute resolution process, investigating the complaint and using a restorative engagement process) and the broader functions of the National Student Ombudsman (including conducting own motion investigations and promoting best practice complaints-handling and systemic improvements). The National Student Ombudsman will be required to include complaints numbers broken down by provider, details about recommendations of the National Student Ombudsman following an investigation and providers' responses to these recommendations, where the provider's response is known.

159. Subsection 21AX(8) allows any other matter relevant to the National Student Ombudsman's operations to be included in the annual report at the National Student Ombudsman's discretion.

Disclosure of identifying information in reports

160. Section 21AY provides that the National Student Ombudsman must not disclose the name of a complainant, or any other information that allows them to be identified, in any investigation report under section 21AV or any annual or other report under section 21AX unless the complainant has consented to the disclosure.

161. This section is also supported by requirements in the Bill that the National Student Ombudsman must not take action to deal with a complaint unless the complainant has agreed to this action and cannot continue to take action if the complainant withdraws the complaint.

Division 6 - Other powers and duties of the National Student Ombudsman

Subdivision A - Information gathering powers

Inquiries

162. This item inserts a new Subdivision A in Division 6 which sets out the information gathering powers of the National Student Ombudsman for the purposes of dealing with complaints and conducting investigations (whether in response to a complaint or on the National Student Ombudsman's own initiative).

163. Section 21AZ sets out the inquiry powers of the National Student Ombudsman.

164. The National Student Ombudsman can make inquiries of a higher education principal executive officer or officer of a provider as they see fit, provided this was for one of the following purposes:

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determining whether they are authorised to deal with a complaint or to conduct an investigation (both in response to a complaint or on own motion)

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determining whether and how to deal with a complaint

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determining whether to conduct an own motion investigation

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dealing with a complaint or conducting an investigation

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considering whether a provider has taken adequate and appropriate action in respect of any recommendations made to the provider under section 21AL (recommendations in respect of a complaint referred back to a provider) or included in a report given to the provider under section 21AV (recommendations contained in an investigation report).

165. The National Student Ombudsman's ability to conduct inquiries broadly replicates the power of the Commonwealth Ombudsman under existing section 7A and subsection 8(3) of the Ombudsman Act and is intended to provide sufficient power for the National Student Ombudsman to gather information necessary to understand whether and how to proceed with a complaint or investigation.

Notices requiring information, documents or attendance to answer questions

166. Section 21AZA permits the National Student Ombudsman to give a person notice in writing requiring that person to:

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give information specified in the notice

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produce documents or other records specified in the notice, or

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answer questions before the National Student Ombudsman or an authorised person.

167. The National Student Ombudsman is not be able to give a notice unless two requirements are met. First, the National Student Ombudsman must reasonably believe that the person to whom the notice is given is capable of giving the information, producing the documents or other records or answering the questions. Second, the information, documents, records or attendance to answer questions must be relevant to one of the following purposes:

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determining whether and how to deal with a complaint

•

using an alternative dispute resolution process or restorative engagement process

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conducting an investigation (whether in response to a complaint or on the National Student Ombudsman's own initiative)

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considering whether a provider has taken adequate and appropriate action in respect of any recommendations made to the provider under section 21AL (recommendations in respect of a complaint referred back to a provider) or included in a report given to the provider under section 21AV (recommendations contained in an investigation report).

168. A notice does not have to indicate specific information, documents or records, noting that this would rarely be within the knowledge of the National Student Ombudsman, but may instead indicate a class of information, documents or records relevant to the above purposes.

169. Subsection 21AZA(3) provides the procedural requirements for notices. A notice requiring a person to give information or produce documents or records must specify a reasonable time period to comply (which is at least 14 days after the day the notice is given). However, it would be open to the person to comply within an earlier time period. A notice requiring attendance to answer questions must specify the date, time (which is at least 14 days after the day the notice is given) and location for attendance. All notices must include any other information prescribed by the National Student Ombudsman Rules.

170. This power to give notices and the abrogation of various privileges (outlined below) is broadly consistent with the Commonwealth Ombudsman's information-gathering powers under existing section 9 of the Ombudsman Act.

171. In comparison to section 9 powers, which are limited to investigations, the equivalent power under this section is expanded to ensure the National Student Ombudsman can exercise information-gathering powers in early stages of complaint-handling and for alternative dispute resolution and restorative engagement processes which are unique to new Part IIF. This reflects the different role of the National Student Ombudsman in oversighting higher education providers, as compared to government agencies. While the National Student Ombudsman will likely seek to establish voluntary and consent-based arrangements with providers, this power ensures the ability to compel the provision of information and documents is available if these arrangements are not appropriate or available in the circumstances.

Self-incrimination

172. Subsections 21AZA(4)-(6) relate to an individual providing information, documents, records or answers to the National Student Ombudsman in response to a notice that may tend to incriminate that person or expose that person to a penalty.

173. Subsection 21AZA(4) provides that an individual is not excused from giving information, producing a document or record or giving an answer in response to a notice on the basis that doing so might tend to incriminate the individual in relation to an offence. The note to this subsection clarifies that a body corporate cannot claim the privilege against self-incrimination.

174. The privilege against self-incrimination is overridden to support the National Student Ombudsman's function to deal with complaints and, where appropriate, investigate and report on actions of higher education providers. These are matters of public importance in terms of protecting individual rights, providing assurance that higher education providers are acting lawfully and fairly, and influencing enduring systemic improvements. The matters subject to a notice would be peculiarly within the knowledge or possession of the person subject to the notice (generally expected to be current or former higher education officers) and would not otherwise be in the knowledge or possession of the National Student Ombudsman.

175. The abrogation of the privilege against self-incrimination operates alongside subsection 21AZA(5) which limits the use of potentially self-incriminating information in criminal proceedings. Subsection 21AZA(5) provides that the information given, document or record produced or answer given (including the act of giving or producing), and any information, document, record or thing obtained as a direct or indirect consequence of that act, is not admissible in evidence in criminal proceedings, subject to specific exemptions. The exemptions are for offences of:

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giving false or misleading information under section 137.1 of the Criminal Code that relates to a notice under this section

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giving false or misleading documents under section 137.2 of the Criminal Code that relates to a notice under this section

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obstructing Commonwealth public officials under section 149.1 of the Criminal Code that relates to a notice under this section.

176. These exemptions are intended to allow information given, documents and records produced and answers given in response to a notice to be admissible in a very limited range of proceedings related to misleading or obstructing Commonwealth officials in relation to a notice under this section. Allowing such evidence to be admissible in these proceedings is necessary to safeguard the integrity of information being provided to the National Student Ombudsman.

177. Subsection 21AZA(6) provides that an individual is not excused from giving information, producing a document or record or giving answers in response to a notice on the basis that, at general law, a person would otherwise be able to claim the privilege against self-exposure to a penalty (other than a penalty for an offence). The note to this subsection clarifies that a body corporate is not entitled to claim the privilege against self-exposure to a penalty.

178. Penalty privilege is the privilege against self-exposure to a civil or administrative penalty. It is a common law privilege that applies in the context of judicial proceedings and may be claimed by an individual to resist compulsion in the course of such proceedings. Subsection 21AZA(6) clarifies that an individual is not excused from complying with a notice issued under this section on the basis that compliance may expose them to a civil or administrative penalty. This reflects the non-judicial character of the National Student Ombudsman's information-gathering powers and ensures that compliance with a notice is mandatory.

179. The privilege of self-exposure is overridden to ensure the National Student Ombudsman can access all relevant information to fully inform their complaint-handling and investigations.

Public interest grounds

180. Subsection 21AZA(7) requires a person to comply with a notice despite certain other laws and privileges that would otherwise excuse them from complying. Under this subsection, a person would not be excused from complying with a notice on the grounds that doing so would disclose legal advice given to any person, disclose a communication protected by legal professional privilege or otherwise be contrary to the public interest.

181. It is appropriate to abrogate legal professional privilege in this way due to the significant impact that conduct by higher education providers that is unlawful, unjust or otherwise lacks integrity or accountability could have on public trust in the higher education system. Privileged information can provide valuable insight into conduct of providers and could be important evidence in an investigation by the National Student Ombudsman. For example, access to legal advice provided to a decision-maker of a provider that indicates a particular decision would or would not be consistent with the proper exercise of the provider's functions would be important to the National Student Ombudsman's assessment of whether the action of the provider was contrary to law, including distinguishing between actions made by mistake from actions constituting improper conduct.

182. Importantly, while legal professional privilege would not constitute grounds to refuse to comply with a notice, subsection 21AZA(8) clarifies that legal professional privilege is preserved in relation to information given or documents produced in response to a notice. This is intended to provide assurance to higher education providers about the maintenance of privilege over their information and documents. This provision is declaratory of the existing law, and is not intended to introduce a substantive change to how legal professional privilege operates in relation to information or documents.

183. In addition to the abrogation of legal professional privilege, subsection 21AZA(7) also provides that a person is not excused from complying with a notice on the grounds that doing so would otherwise be contrary to the public interest. That is, claiming public interest immunity would not be a legitimate reason to refuse to comply with a notice.

184. Providing that a person cannot refuse to comply with a notice on public interest grounds would reflect the public interest in ensuring the National Student Ombudsman can obtain all relevant information as part of an investigation into the action of a higher education provider in order to resolve complaints for individuals, as well as influence improvements to sector-wide behaviour.

Inspecting, copying and retaining documents

185. Subsections 21AZA(9) - (13) would allow for the National Student Ombudsman to inspect, make and retain copies, take and retain extracts and take possession for as long as reasonably necessary, of documents or records produced in response to a notice. These subsections ensure that a person entitled to possession of a document or record produced in response to a notice is required to be given a certified copy that is admissible in evidence as if it were the original and is entitled to reasonable access to the document or record until a certified copy is supplied.

Responding to inquiries and notices

186. Section 21AZB provides information-sharing authorisations to support the operation of sections 21AZ and 21AZA.

187. Subsection 21AZB(1) authorises a person to give information, produce documents or other records and answer questions in response to preliminary inquiries under section 21AZ and notices under section 21AZA. The note to subsection 21AZB(1) clarifies that the provision constitutes an authorisation for the purposes of the Privacy Act and other laws.

188. Subsection 21AZB(2) provides that an authorisation has effect despite anything in another Commonwealth law or state or territory law whether written or unwritten and whether enacted before or after commencement of Part IIF. This provision is important to ensure that persons, and particularly higher education providers and their staff, are not restricted by any law from providing information in response to the National Student Ombudsman's use of information-gathering powers. This includes state or territory privacy laws or secrecy provisions that are applicable to higher education providers, for example.

189. If a person gave information, produced documents or records or answered questions in response to preliminary inquiries or a notice, new subsection 21AZB(3) provides that they are not subject to any penalty under the provisions of a law of the Commonwealth, a state or territory for doing so.

190. Providing immunity to liability for a person acting in compliance with information-gathering powers is necessary to support the operations of the National Student Ombudsman and enables a person to comply with requests or requirements of the National Student Ombudsman without facing a penalty for breach of any law. Should immunity to liability not be provided, this risks seriously undermining the effectiveness of the National Student Ombudsman's information-gathering powers and consequently their ability to handle complaints and conduct investigations, which could be frustrated by non-compliance with notices.

Subdivision B - Application of Act to National Student Ombudsman

191. This item also inserts a new Subdivision B which relates to the application of the Ombudsman Act to the National Student Ombudsman.

Application of certain provisions of the Ombudsman Act

192. Section 21AZC applies various provisions of the Ombudsman Act, that are not contained in Part IIF, to the National Student Ombudsman.

193. The relevant provisions are deemed to apply to the National Student Ombudsman as if:

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a reference to the Ombudsman or Commonwealth Ombudsman was a reference to the National Student Ombudsman

•

a reference to a Department or prescribed authority were a reference to a higher education provider

•

a reference to the principal officer of a Department or prescribed authority were a reference to the higher education principal executive officer of a higher education provider

•

a reference to an officer of a Department or prescribed authority were a reference to a higher education officer of a higher education provider.

194. The provisions that apply to the National Student Ombudsman are:

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the definition of authorised person in subsection 3(1)

•

section 7 (complaints)

•

section 11A (powers of the Federal Court of Australia) other than subsections (1) and (5)

•

section 12 (complainant and Department etc. to be informed)

•

section 13 (power to examine witnesses)

•

section 14 (power to enter premises)

•

section 31 (staff), other than subsection (2)

•

Part IV (miscellaneous), other than subsections 34(1) to (3) (delegation) and paragraph 35(1)(e) and (f) and subparagraph 35(3)(b)(ia) (officers to observe confidentiality)

195. Subsections 21AZC(3)-(12) provides for additional modifications to references contained in specific provisions applied to the National Student Ombudsman, to ensure these provisions are applied effectively.

Application of the definition of authorised person in subsection 3(1)

196. As applied, this provision ensures that authorised officers can be appointed by the National Student Ombudsman to exercise powers and perform functions on behalf of the National Student Ombudsman.

Application of section 7 (complaints)

197. Section 7 of the Ombudsman Act sets out procedural arrangements for making complaints to the Commonwealth Ombudsman.

198. As applied, this provision provides (among other things) that complaints to the National Student Ombudsman may be made orally or in writing and that the National Student Ombudsman may reduce an oral complaint to writing or ask a complainant to do so. If the complainant refuses this request, the National Student Ombudsman may decline to deal with the oral complaint.

Application of section 11A (powers of the Federal Court of Australia), other than subsections (1) and (5)

199. Section 11A of the Ombudsman Act provides for the circumstances in which the Commonwealth Ombudsman may apply to the Federal Court in respect of specific matters and establishes the jurisdiction of the Federal Court with respect to the Commonwealth Ombudsman.

200. As applied, this provision enables the National Student Ombudsman (after writing to inform the Minister administering the Ombudsman Act and the Higher Education Minister) to seek an order from the Federal Court ordering a person who has failed to comply with a notice under section 21AZA to give the information or produce the documents or records requested or attend before the National Student Ombudsman to answer questions.

Application of section 12 (complainant and Department etc. to be informed)

201. Section 12 of the Ombudsman Act sets out procedural requirements for the Commonwealth Ombudsman to inform complainants, Departments and prescribed authorities about investigations.

202. As applied, this provision:

•

requires the National Student Ombudsman to notify a complainant and higher education provider as soon as practicable of a decision not to investigate, or to continue to investigate, a complaint and reasons for this decision

•

allows the National Student Ombudsman to make arrangements with higher education providers about whether to inform, and if so, the manner and period within which the National Student Ombudsman is required to inform, the provider about decisions not to investigate or continue to investigate complaints in a particular class

•

requires the National Student Ombudsman to give the complainant and provider particulars of an investigation once an investigation is completed, in the manner and at such time as the National Student Ombudsman sees fit

•

allows the National Student Ombudsman to give comments or suggestions with respect to any matter arising out of an investigation to a higher education provider or any other person given a report under section 21AV relating to that matter

•

requires the National Student Ombudsman to give the complainant a copy of the recommendations given to a provider in a report under section 21AV together with any provider comments, if the National Student Ombudsman is of the opinion that the provider has not taken adequate or appropriate action to address the recommendations within a reasonable time after receiving the report

•

allows the National Student Ombudsman to give the complainant a copy of the recommendations given to a provider in a report under section 21AV together with any provider comments in any other case.

Application of section 13 (power to examine witnesses)

203. Section 13 of the Ombudsman Act allows the Commonwealth Ombudsman to administer oaths or affirmations to persons required to attend before them to answer questions in response to a notice under section 9 of the Ombudsman Act.

204. As applied, this provision would allow the National Student Ombudsman to administer an oath or affirmation to a person who appears to give answers to questions in response to the equivalent notice provision under section 21AZA.

Application of section 14 (power to enter premises)

205. Section 14 of the Ombudsman Act provides a power for the Commonwealth Ombudsman to enter the premises of a Department, prescribed authority or service provider and carry on an investigation.

206. As applied, this provision allows the National Student Ombudsman or an authorised person, for the purposes of an investigation, to enter a place occupied by a higher education provider at any reasonable time of day, and carry on the investigation at that place (including inspecting documents).

207. Section 14 allows for an authorised person to enter premises without the consent of the occupier or person in charge of the place. The application of this power to the National Student Ombudsman is necessary to allow the performance of core oversight functions. While it is anticipated that higher education providers will generally engage in good faith with the National Student Ombudsman, this may not always be the case. The power to enter premises is therefore essential to ensure that the National Student Ombudsman can undertake full, independent and transparent investigations that are not hampered by non-compliance on the part of a provider.

208. Applying section 14 to the National Student Ombudsman ensures that powers can be exercised consistently with those of the Commonwealth Ombudsman and other statutory offices including the Overseas Students Ombudsman and the VET Student Loans Ombudsman. Similar powers are also provided in the enabling legislation of other oversight bodies, such as the Auditor-General and the Inspector-General of Intelligence and Security (IGIS).

209. Section 14 does not trigger Part 3 of the Regulatory Powers (Standard Provisions) Act 2014. The search and seizure powers in Part 3 are not appropriate to support the Commonwealth Ombudsman's oversight role. This is because these powers apply to investigating offence and civil penalty provisions that the triggering Act prescribes as 'subject to investigation'. The power at section 14 of the Ombudsman Act is not used to investigate individual compliance with an offence or civil penalty provision under the Act, but rather, to inform investigations into actions taken by bodies subject to jurisdiction, including higher education providers.

Application of section 31 (staff), other than subsection (2)

210. Section 31 of the Ombudsman Act sets out arrangements with respect to staff of the Commonwealth Ombudsman.

211. As applied, this provision ensures that staff of the National Student Ombudsman are engaged under the Public Service Act 1999, consistent with all other staff of the Commonwealth Ombudsman.

Part IV (miscellaneous), other than subsections 34(1) to (3) (delegation) and paragraph 35(1)(e) and (f) and subparagraph 35(3)(b)(ia) (officers to observe confidentiality)

212. Part IV of the Ombudsman Act sets out a range of miscellaneous matters in relation to the Commonwealth Ombudsman. The application of these provisions to the National Student Ombudsman is outlined below.

Application of section 33 (Ombudsman not to be sued)

213. Section 33 provides certain protections from liability to the Commonwealth Ombudsman.

214. As applied, section 33 would provide that the National Student Ombudsman and any person acting under their direction or authority is not liable to any action, suit or proceedings in relation to acts done in good faith in the exercise or purported exercise of powers or authority conferred by the Ombudsman Act. This would not prevent legal action being taken against the National Student Ombudsman if they were acting outside their functions or powers.

215. This immunity from liability is appropriate to ensure that the National Student Ombudsman and people acting under their authority can effectively perform their functions or role without concern about potential proceedings being brought against them for the legitimate undertaking of these functions and roles.

Application of section 34 (Delegation)

216. Section 34 sets out matters relating to delegations.

217. The general delegation power at subsection 34(1) does not apply to the National Student Ombudsman as there is a power specific to the National Student Ombudsman at new subsection 34(4). Only subsections 34(5) and (7) apply. Subsection 34(5) requires a delegate of the National Student Ombudsman to provide copies of instruments of delegation on request. Subsection 34(7) authorises the National Student Ombudsman to exercise powers delegated by a state ombudsman (including a territory ombudsman) in certain circumstances.

Application of section 35 (Officers to observe confidentiality)

218. Section 35 sets out confidentiality requirements and exceptions to these requirements for officers of the Commonwealth Ombudsman.

219. As applied, section 35 imposes confidentiality requirements on officers of the National Student Ombudsman, including staff members, delegates and authorised persons of the National Student Ombudsman.

220. Under subsection 35(2) it would be an offence for officers of the National Student Ombudsman to make a record of, divulge or communicate to any person (whether directly or indirectly) information acquired under the Ombudsman Act by reason of being an officer of the National Student Ombudsman. The offence is punishable by 5 penalty units.

221. There are a range of exceptions to this confidentiality requirement under section 35, including:

•

where the disclosure was connected to the exercise of powers or performance of functions of the National Student Ombudsman (paragraph 35(3)(a))

•

where there is appropriate consent to disclose (paragraph 35(3)(b)).

222. Under subsection 35(4), the confidentiality offence does not prevent the National Student Ombudsman from disclosing matters that in their opinion should be disclosed in a report, when setting out the grounds for the findings, conclusions and recommendations in the report.

223. In order for the National Student Ombudsman to operate effectively, it is important that complainants have strong confidence that information about their complaints will be protected. Applying section 35 to the National Student Ombudsman provides this confidence and in doing so protects an essential public interest in ensuring the integrity of Ombudsman investigations and improving accountability of higher education providers. The offence at section 35 ensures that inappropriate disclosure of information can be addressed where this is not serious enough to engage general secrecy offences in the Criminal Code, but nevertheless justifies a penalty beyond ordinary disciplinary action.

Application of sections 35AA (Disclosure of information and documents to National Anti-Corruption Commission or Inspector) and 35AB (Disclosure of information and documents to Inspector-General of Intelligence and Security)

224. Sections 35AA and 35AB permit disclosure to the National Anti-Corruption Commission (NACC) or NACC Inspector and the IGIS respectively.

225. As applied, section 35AA allows the National Student Ombudsman to disclose information, make a statement or give a document to the NACC or NACC Inspector if the National Student Ombudsman obtains information or documents that may be relevant to a corruption issue or NACC corruption issue in the course of an own motion investigation.

226. As applied, section 35AB allows the National Student Ombudsman to disclose information, make a statement or give a document to the IGIS if the National Student Ombudsman obtains information or documents that may be relevant to the performance of the IGIS's functions in the course of performing the functions of the National Student Ombudsman.

227. While these provisions are unlikely to be relevant to any significant degree to the operations of the National Student Ombudsman, applying them to the National Student Ombudsman provides certainty that relevant information could be disclosed as needed.

Application of section 35A (Disclosure of information by Ombudsman)

228. Section 35A provides for disclosure of information by the Commonwealth Ombudsman about the performance of their functions or investigations.

229. As applied, section 35A permits the National Student Ombudsman to (subject to sections 35B and 35C) disclose information and make statements to any person or the public about the performance of functions by the National Student Ombudsman or an investigation by the National Student Ombudsman, notwithstanding other provisions of the Ombudsman Act. The National Student Ombudsman may only do so if it was in the interests of a higher education provider or the public interest.

230. There are a number of restrictions on the National Student Ombudsman's ability to disclose such information or make such a statement. This includes where it would interfere with an investigation or where it sets out opinions that are critical of a higher education provider and the provider has not been provided an opportunity to make submissions under section 21AU.

231. In disclosing information or making a statement under section 35A about a particular investigation, the National Student Ombudsman would not be permitted to disclose the name of a complainant or any identifying information unless it is fair and reasonable in all the circumstances to do so. While a determination of what is fair and reasonable will always require consideration of complainant consent, in the case of the National Student Ombudsman, this is even more pronounced. Complainant consent is central to the core functions of the National Student Ombudsman and complainant agreement will underpin any action taken to deal with a complaint. As such, in applying section 35A to the National Student Ombudsman, it would not be fair and reasonable to disclose identifying information if the complainant had not consented to disclosure for the relevant purpose.

Application of sections 35B (Disclosure of ACC information) and 35C (Disclosure of NACC information)

232. Sections 35B and 35C set out a certificate framework preventing disclosure of Australian Crime Commission (ACC) information and NACC information respectively.

233. As applied, section 35B prevents the National Student Ombudsman from disclosing, by any listed disclosure method, ACC information that is subject to a certificate on the grounds that disclosure is contrary to the public interest. Listed disclosure methods include disclosure in reports of the National Student Ombudsman, giving the information to any other Commonwealth entity or state or territory body and disclosing the information in a statement under section 35A.

234. As applied, section 35C has the same effect and operation as section 35B in relation to NACC information.

235. While these provisions are unlikely to be relevant to any significant degree to the operations of the National Student Ombudsman, applying them to the National Student Ombudsman provides surety that protections are in place if needed.

Application of section 36 (Offences)

236. Section 36 provides offences where a person fails to comply with certain notices and directions given under the Ombudsman Act.

237. As applied, subsection 36(1) provides it is an offence for a person to refuse or fail to do any of the following when required to under the Ombudsman Act:

•

attend before the National Student Ombudsman

•

be sworn or make an affirmation

•

furnish or publish information

•

answer a question or produce a document or record

•

give a report.

238. The offence is punishable by imprisonment for 3 months or 10 penalty units.

239. Subsection 36(2A) provides that a person does not commit an offence if the person has a reasonable excuse. The note to subsection 36(2A) specifies that a defendant bears an evidential burden of proof in relation to this defence. This adopts existing policy in subsection 13.3(3) of the Criminal Code. Placing the evidential burden on the defendant would require the defendant to adduce or point to evidence that suggests a reasonable possibility that the matters comprising the offence exist or do not exist (subsection 13.3(6) of the Criminal Code). If the defendant discharges the evidential burden, the prosecution then has the legal burden of disproving that matter (subsection 13.1(2) of the Criminal Code). In line with the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, this offence-specific defence is appropriate as the defendant would be best placed to raise evidence demonstrating a reasonable excuse in the circumstances, and it would be significantly more difficult and costly for the prosecution to disprove this than for the defendant to establish the matter.

Application of section 37 (Protection from civil actions)

240. Section 37 provides protections from civil actions for people who complain to the Commonwealth Ombudsman or cooperate with the Commonwealth Ombudsman.

241. As applied, section 37 provides that civil proceedings do not lie against a person in relation to loss, damage or injury of any kind suffered by another person by reason of the following acts done in good faith:

•

making a complaint to the National Student Ombudsman

•

making a statement to, or furnishing a document or information to, an officer of the National Student Ombudsman regardless of whether or not this was required to be done under a section 21AZA notice or by court order under section 11A.

242. Providing protections from civil action for people who, in good faith, complain to the National Student Ombudsman supports the complaints-handling processes of the National Student Ombudsman and enables a person to make a complaint without fear of repercussions through civil action.

243. Likewise, protecting people who give information in good faith to the National Student Ombudsman (whether required or voluntary) ensures the National Student Ombudsman can effectively perform their functions and their information-gathering processes can be better facilitated, as people who disclose can do so without fear of civil proceedings being brought against them.

244. The scope of good faith will generally require that the complaint be made or information given for a legitimate purpose and that this is not done for frivolous or vexatious reasons or with ill intent.

Application of section 38 (Regulations)

245. Section 38 provides a regulation-making power.

246. As applied, section 38 allows for regulations to be made prescribing all matters required or permitted by the Ombudsman Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act. This may include regulations in relation to the National Student Ombudsman.

Subdivision C - Duties

247. This item inserts a new Subdivision C which provides for certain duties of the National Student Ombudsman.

Duty to accord procedural fairness

248. Section 21AZD provides that the National Student Ombudsman must comply with the rules of procedural fairness when exercising a power under the Ombudsman Act. The examples included in the section are intended to provide guidance on instances in which procedural fairness must be given to a higher education provider. This includes:

•

if the National Student Ombudsman sets out a critical opinion of a person in an investigation report, that person must be given the opportunity to make submissions. This is a requirement under subsection 21AU(3).

•

if the National Student Ombudsman sets out a critical opinion of a person in a disclosure or statement under subsection 35A(1) or in referring to an investigation in an annual or other report under section 21AX, that person must be afforded procedural fairness.

Division 7 - Miscellaneous

249. This item inserts a new Division 7 which provides for miscellaneous matters in relation to the National Student Ombudsman. The matters are:

•

continued application for providers who cease to be registered and providers who are succeeded by or merged with other providers

•

managing complaints between the Commonwealth Ombudsman, Overseas Students Ombudsman, VET Student Loans Ombudsman and National Student Ombudsman

•

authorisations for disclosure to TEQSA, Ministers, the Higher Education Department and state and territory bodies

•

notifications of misconduct

•

limitation on liability for the voluntary provision of information, documents or records

•

effect of Part IIF on other provisions of the Ombudsman Act

•

making of the National Student Ombudsman Rules.

Continued application of Part

250. Section 21AZE provides for the continued application of Part IIF to providers that are no longer registered and providers who merge or are otherwise succeeded.

251. Subsections 21AZE(1) and (2) provide for application of the Part to formerly registered higher education providers. These subsections apply where:

•

an entity took action at a particular time

•

at the time they took the action, the entity was a higher education provider

•

at a later time after taking the action, called the deregistration time, the provider ceased to be TEQSA registered or listed on the National Register of Higher Education Providers

•

a complaint was made about the action to the National Student Ombudsman either before the deregistration time or within 12 months of the after the deregistration time

•

the entity remains a constitutional provider.

252. If these circumstances are met, Part IIF is deemed to apply in relation to the complaint and the provider as if the provider continued to be a higher education provider (i.e. continued to be registered and listed).

253. This is intended to provide students with a 12 month grace period for making a complaint after their provider has ceased operating and to permit the National Student Ombudsman to investigate such complaints. It also ensures that the National Student Ombudsman can continue to deal with complaints on foot at the time a provider ceases operating.

254. In order for there to be an effective complaints-handling process, the provider is still required to exist in the sense that it remains a constitutional provider (i.e. a constitutional corporation or a body corporate established under a law of the Commonwealth or a Territory).

255. Subsections 21AZE(3) and (4) provides for application of the Part to successor and merged higher education providers. These subsections apply where:

•

an entity (the first entity) took an action at a particular time

•

at the time the action was taken, the first entity was a higher education provider

•

at a later time after taking the action, called the merger time, the first entity ceases to exist

•

at or immediately after the merger time, another entity (the second entity) becomes the successor in title to the first entity

•

the second entity is a higher education provider.

256. If these circumstances are met, Part IIF is deemed to apply to in relation to the complaint as if the action taken by the first entity was taken by the second entity, the complaint made about action of the first entity was a complaint made about action of the second entity and things done by the National Student Ombudsman before the merger in relation to the action and the first entity were done in relation to the second entity.

257. This ensures that students of providers that merge with another provider or are succeeded by a different provider, either before a complaint can be made or during the National Student Ombudsman's consideration of a complaint, continue to have a pathway to the National Student Ombudsman. In effect, this provision results in a student's complaint about their previous provider being treated as a complaint about the new provider by the National Student Ombudsman.

Discretion to deal with complaints as National Student Ombudsman or other Ombudsman

258. Section 21AZF gives discretion to deal with complaints as either the Commonwealth Ombudsman, Overseas Students Ombudsman, VET Student Loans Ombudsman or National Student Ombudsman.

259. There may be some overlap between the complaints jurisdiction of these various statutory offices established under the Ombudsman Act, particularly in relation to international students. This provision is intended to allow complaints to be handled and directed as appropriate in the backend of the Office of the Commonwealth Ombudsman and without requiring complainants to make multiple complaints.

260. Subsection 21AZF(1) provides that the Commonwealth Ombudsman, Overseas Students Ombudsman and VET Student Loans Ombudsman may deal with, or continue to deal with a complaint as if it were made to the National Student Ombudsman. This could be done if the person holding the office considers it would be more appropriate to deal with or continue to deal with the complaint in their capacity as National Student Ombudsman. The example given is where a complaint is made to the Commonwealth Ombudsman about a prescribed authority that is also a higher education provider, this complaint could be dealt with by the National Student Ombudsman.

261. Subsection 21AZF(2) provides for the inverse, to allow the National Student Ombudsman to deal with or continue to deal with a complaint as if it were made to the Commonwealth Ombudsman, Overseas Students Ombudsman or VET Student Loans Ombudsman. This could be done if the person holding the office considered it would be more appropriate to deal with or continue to deal with the complaint in their capacity as Commonwealth Ombudsman, Overseas Students Ombudsman or VET Student Loans Ombudsman. The example given is where a complaint is made by an international student to the National Student Ombudsman about a private registered provider for overseas students that is also a higher education provider, this complaint could be dealt with by the Overseas Students Ombudsman.

Authorised disclosure of information

262. Section 21AZG provides authorisations for disclosure of information to TEQSA, Ministers, the Higher Education Department and prescribed Commonwealth, state or territory bodies. Disclosure in accordance with these authorisations would be exempted from the confidentiality offence at subsection 35(2) by subsection 35(3C).

263. An official of the National Student Ombudsman is permitted to disclose relevant information to:

•

the Chief Executive Officer of TEQSA (subsection 21AZG(1))

•

the Minister administering the Ombudsman Act or the Higher Education Minister (subsection 21AZG(2))

•

the Secretary of the Higher Education Department (subsection 21AZG(3))

•

a prescribed Commonwealth, state or territory body (within the meaning of subsection 21AE(5)) (subsection 21AZG(4)).

264. Disclosure must be for the purposes of assisting the relevant person or body to perform their functions or duties or exercise their powers.

265. However, an official would not be authorised to disclose relevant information if that information would enable a complainant to be identified, unless the complainant has consented to the disclosure.

266. For the purposes of this section, an official is the National Student Ombudsman, a Deputy Ombudsman, a member of staff referred to in subsection 31(1) of the Ombudsman Act, and any other person who exercises delegated powers of the National Student Ombudsman or is an authorised person.

267. For the purposes of this section, relevant information (being information that can be disclosed under the authorisation) is information of the kind described in subsection 35(2). This is information that is acquired by an officer by reason of being an officer and that was disclosed or obtained under the provisions of the Ombudsman Act.

268. This section is intended to complement provisions allowing for referral of matters raised in complaints where the matter could be more appropriately dealt with by another body. These authorisations are intended to allow broader information-sharing of any information obtained in the course of the performance of the National Student Ombudsman's functions that would assist that other person or body to perform their functions. This may include, for example, information about trends observed, specific regulatory issues, or issues raised in complaints that are relevant to a state or territory body but would not necessitate referral.

National Student Ombudsman may notify of misconduct

269. Section 21AZH sets out what the National Student Ombudsman can do if they identify misconduct by an officer of a higher education provider in the course of dealing with a complaint or an investigation.

270. This section provides that the National Student Ombudsman may bring evidence to the notice of the principal executive officer of a higher education provider at any time if, in the National Student Ombudsman's opinion:

•

the evidence suggested that an officer of the provider had engaged in misconduct, and

•

the evidence is, in all the circumstances, of sufficient force to justify doing so.

271. This provision replicates existing provisions for the Commonwealth Ombudsman (subsection 8(10)) and a range of the offices held by the Ombudsman including the Overseas Students Ombudsman (section 19ZT). It is intended to allow for a higher education provider to be made aware of misconduct of its officers and be able to address this regardless of whether an investigation has been finalised.

Limitation on liability where information or documents provided in good faith

272. Section 21AZJ provides protections from liability for people who provide information or documents voluntarily to the National Student Ombudsman in good faith.

273. Subsection 21AZJ(1) provides that a person is not liable to a proceeding or subject to liability under an enactment merely because the person, in good faith and in relation to the National Student Ombudsman's functions, does any of the following:

•

gives information to the National Student Ombudsman (other than in accordance with a notice under section 21AZA)

•

gives a document or other record to the National Student Ombudsman (other than in accordance with a notice under section 21AZA).

274. The note to this subsection clarifies that protections for information and documents given in response to a notice under section 21AZA are at subsection 21AZA(5) and section 21AZB. These provisions limit the admissibility of information and documents in evidence and authorise compliance with a notice despite any other Commonwealth, state or territory law.

275. Subsection 21AZJ(2) clarifies, for the avoidance of doubt, that this does not prevent the person who gives information, documents or records to the National Student Ombudsman from being liable to a proceeding or being subject to a liability for conduct of that person that is revealed by the information, document or record given to the National Student Ombudsman.

276. This means, for example, that a person will not be liable for the act of voluntarily giving a document to the National Student Ombudsman but, if that document provided evidence that they had engaged in some form of unlawful conduct, they could be held liable for that conduct. As this section deals with protections for giving information voluntarily, it is appropriate that a person remain liable for unlawful conduct revealed in the information provided to the National Student Ombudsman, as the person is not required to give the information to the National Student Ombudsman.

277. Subsection 21AZJ(3) clarifies that the protections from liability in this section does not limit section 37. Section 37, as applied by section 21AZC, provides certain protections from civil liability for persons who make a complaint or provide statements, documents or information to the National Student Ombudsman.

278. This section is intended to provide protections for persons who give information, documents or records voluntarily to the National Student Ombudsman. This includes, for example, persons who give information, documents or records in response to inquiries under section 21AZ, as part of making a complaint or completely voluntarily and not under a specific provision of the Act where this assists the National Student Ombudsman to perform functions.

279. It is appropriate to limit liability for persons who voluntarily give information, documents or records in good faith as this supports the information-gathering and complaints-handling functions of the National Student Ombudsman.

280. Providing protections for giving of voluntary information will reduce the need for the use of notices under section 21AZA (and the consequent resourcing burden on the National Student Ombudsman) and provide assurance to people with relevant information that they can provide this information to the National Student Ombudsman without facing penalty for breach of the law. The requirement that information be provided in good faith ensures that the process of giving information to the National Student Ombudsman is done for a legitimate purpose and not in a frivolous or vexatious way.

Part not to affect operation of other provisions of this Act

281. Section 21AZK provides that this Part does not, by implication, affect the operation of other provisions in the Ombudsman Act. This is intended to provide certainty about the interaction between Part IIF and the rest of the Ombudsman Act. This reflects that there are a number of drafting differences in Part IIF that reflect modern drafting practice and are not intended to otherwise affect the application of other provisions in the Ombudsman Act.

National Student Ombudsman Rules

282. Section 21AZL enables rules to be made in relation to the National Student Ombudsman

283. Under subsection 21AZL(1), the Minister may, by legislative instrument, make rules prescribing matters that are:

•

required or permitted by Part IIF to be prescribed in rules

•

necessary or convenient to be prescribed for carrying out or giving effect to Part IIF.

284. For the avoidance of doubt, subsection 21AZL(2) sets out things that cannot be done in the rules. These are:

•

creating an offence or civil penalty

•

providing powers of arrest or detention, or entry search or seizure

•

imposing a tax

•

setting an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in the Ombudsman Act

•

directly amending the text of the Act.

285. The Bill specifically provides for Rules to prescribe the following matters:

•

kinds of actions that are or are not excluded actions (section 21AD)

•

Commonwealth, state and territory bodies authorised to transfer complaints to, and share information with, the National Student Ombudsman (section 21AE)

•

matters that the National Student Ombudsman is to have regard to when directing a higher education provider to participate in alternative dispute resolution or deciding that a complaint cannot be settled by alternative dispute resolution (sections 21AN and 21AP)

•

information that must be included in a notice under section 21AZA.

286. The ability to refine the matters that are or are not excluded actions under section 21AD is necessary to ensure that the National Student Ombudsman's complaints-handling capability can be quickly responsive to students' needs. For example, if there were trends in complaints that indicated that the exclusion of matters of employment or academic judgment needed to be refined in order to ensure the complaints-handling process was effective, prescribing these matters in rules would provide the necessary administrative flexibility to do so.

287. The ability to prescribe Commonwealth, state and territory bodies that are authorised to transfer complaints to, and share information with, the National Student Ombudsman is also necessary to ensure the National Student Ombudsman can be responsive to changes in complaints-handling jurisdictions. This provision will operate alongside the ability for state and territory ombudsmen to transfer complaints under section 21AE and allow additional bodies to be prescribed as needed. Allowing for these bodies to be prescribed in rules ensures that any changes to, or creation of, relevant Commonwealth, state and territory bodies can quickly be reflected in the transfer provisions of the Bill, allowing for a more streamlined experience for complainants.

288. The remaining matters allow for procedural flexibility for minor matters related to alternative dispute resolution and giving of notices requiring persons to give information, produce documents or records or answer questions.

289. Dealing with these matters in rules rather than regulations accords with the Office of Parliamentary Counsel's (OPC) Drafting Direction No. 3.8 - Subordinate legislation. That Drafting Direction states that 'OPC's starting point is that subordinate instruments should be made in the form of legislative instruments (as distinct from regulations) unless there is good reason not to do so'.

290. The Drafting Direction states that matters such as compliance and enforcement, the imposition of taxes, setting amounts to be appropriated, and amendments to the text of an Act, should be included in regulations unless there is a strong justification otherwise. The Bill does not enable rules to provide for any of these matters. This is clarified by subsection 21AZL(2) that specifically prevents rules from including these types of matters.

291. This section also clarifies that the rules made under the section are a legislative instrument for the purposes of the Legislation Act 2003. Under that Act, legislative instruments and their explanatory statements must be tabled in both Houses of the Parliament within 6 sitting days of the date of registration of the instrument on the Federal Register of Legislation. Once tabled, the rules will be subject to the same level of parliamentary scrutiny as regulations (including consideration by the Senate Standing Committee for the Scrutiny of Delegated Legislation), and a motion to disallow the rules may be moved in either House of the Parliament within 15 sitting days of the date the rules are tabled.

Item 6: At the end of Division 2 of Part III

292. This item inserts section 31A which provides for the engagement of persons to conduct alternative dispute resolution processes in relation to complaints to the National Student Ombudsman, under Subdivision D of Division 3 of Part IIF. These people can be engaged by the Commonwealth Ombudsman on written terms and conditions determined by the Commonwealth Ombudsman.

293. Before engaging a person to conduct alternative dispute resolution, the Commonwealth Ombudsman must be satisfied, having regard to the person's qualifications and experience, that the person is suitable to conduct the relevant kind of dispute resolution process. This includes, for example, requiring mediators to be accredited under the National Mediator Accreditation System or requiring particular expertise in trauma-informed practice.

294. This item ensures that alternative dispute resolution processes in relation to complaints to the National Student Ombudsman can be conducted by appropriately qualified practitioners.

Item 7: After subsection 34(3)

295. This item inserts subsections (4) and (4A) into section 34 of the Ombudsman Act, which sets out delegation powers.

296. Subsection 34(4) provides that the National Student Ombudsman may delegate any or all of the National Student Ombudsman's functions or powers under the Ombudsman Act (except for reporting powers under sections 21AV, 21AW and 21AX) to a member of staff.

297. The National Student Ombudsman's power to delegate is not arbitrary and is subject to safeguards to ensure that staff exercising delegated powers have appropriate skills and experience. Subsection 34(4A) requires that, before delegating a power or function, the National Student Ombudsman must have regard to the following:

•

if the delegation is to a person holding, occupying or performing the duties of a specified office or position - whether the office or position is sufficiently senior for the person to exercise the delegated power or function

•

in any other case - whether the person has appropriate qualifications or expertise to perform the function.

298. In order to handle the significant volume of complaints expected to be received by the National Student Ombudsman, it will be necessary for a range of powers to be delegated to manage the workload of the National Student Ombudsman. Complaint-handling is a process with a number of decision points that would need to be resolved expeditiously by complaints-handling officers. This requires officers to be able to effectively use the tools of the National Student Ombudsman, particularly in relation to information-gathering.

299. This item provides an appropriate degree of operational flexibility for the National Student Ombudsman to delegate powers as necessary for effective case management of complaints, including allowing the National Student Ombudsman to delegate powers and functions to a class of persons in a particular position or at a particular level.

Item 8: At the end of subsection 35(1)

300. This item inserts a new paragraph (g) into subsection 35(1) of the Ombudsman Act. Subsection 35(1) provides a definition of 'officer' for the purposes of confidentiality obligations under section 35. New paragraph (g) inserts a reference to a person engaged by the Ombudsman under new section 31A. Section 31A permits the Commonwealth Ombudsman to engage people to conduct alternative dispute resolution processes in relation to complaints to the National Student Ombudsman.

301. The effect of including new paragraph (g) is that these alternative dispute resolution practitioners are considered to be 'officers' for the purposes of section 35 of the Ombudsman Act and therefore required to observe strict confidentiality requirements preventing disclosure of information acquired as a result of being an officer of the Commonwealth Ombudsman, except in limited circumstances.

302. It is important that complainants have confidence that information about their complaints will be protected and handled appropriately. Unrestricted sharing of information relating to a complaint would potentially undermine trust in, and the effectiveness of, the National Student Ombudsman to carry out its functions and could discourage persons from making complaints in the first place. Applying section 35 to alternative dispute resolution practitioners ensures complainants have confidence about the handling of their complaint and any associated alternative dispute resolution process.

Item 9: After subsection 35(3B)

303. This item inserts subsection (3C) into section 35 of the Ombudsman Act. As outlined above, section 35 sets out confidentiality requirements for officers and exceptions to these confidentiality requirements. Subsection 35(3C) provides an exception from confidentiality requirements at subsection 35(2) to ensure that an officer is not prevented from divulging or communicating information in accordance with an information-sharing authorisation under section 21AZG. Section 21AZG authorises disclosure of information by the National Student Ombudsman to TEQSA, certain Ministers, the Higher Education Department and certain state and territory bodies. This provision ensures that those authorisations operate effectively and allow streamlined information-sharing.

Part 2 - Other amendments

National Anti-Corruption Commission Act 2022

Item 10: Paragraph 15(a)

304. This item amends paragraph 15(a) of the National Anti-Corruption Commission Act 2022 (NACC Act) to include a reference to the National Student Ombudsman. Section 15 of the NACC Act defines a Commonwealth integrity agency for the purposes of that Act, which includes the Commonwealth Ombudsman and all of the statutory offices established under the Ombudsman Act at paragraph (a). Consistent with the listing of all statutory offices established under the Ombudsman Act, the amendment ensures the National Student Ombudsman is also captured as a part of the relevant Commonwealth integrity agency.

Ombudsman Act 1976

Item 11: After section 35C

305. This item deals with reprisals for detrimental action taken against a complainant because they made or may make a complaint to either the National Student Ombudsman or the Overseas Students Ombudsman. This item provides for a range of protections from reprisals, in the form of civil remedies and an offence provision. These provisions are broadly modelled on equivalent protections in the Public Interest Disclosure Act 2013.

Protection from reprisals - what constitutes taking a reprisal

306. Section 35D sets out what constitutes a reprisal.

307. Subsection 35D(1) provides that person one takes a reprisal against person two if all of the following things occur:

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person one engages in conduct that results in detriment to person two or conduct that consists of, or results in, a threat to cause detriment to person two (paragraph (a))

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when person one engages in the conduct, they believe or suspect that person two has made, may have made, proposes to make or could make a complaint to the National Student Ombudsman or the Overseas Students Ombudsman (paragraph (b))

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person one's belief or suspicion is the reason, or part of the reason, for engaging in the conduct (paragraph (c)).

308. The term 'detriment' is not defined and is intended to take its ordinary meaning. This could include, for example, bullying and harassment of a complainant, negative academic consequences (other than award of grades) such as being passed over for placements, discrimination between the complainant and other students, and threats of violence against a complainant.

309. It is possible for a third party (i.e. a person who is not an officer of a higher education provider) to take reprisal action. For example, if a student were proposing to make a complaint to the National Student Ombudsman about their provider's handling of alleged violence experienced on campus and the alleged perpetrator of the violence made threats in an attempt to prevent the student making the complaint, this would constitute a reprisal. The fact that someone other than the provider who is the subject of the complaint is taking the action does not prevent it from being a reprisal.

310. Subsection 35D(2) clarifies that reasonable administrative action to protect a person from detriment is not a reprisal. For example, if a student complained to the National Student Ombudsman about action of a tutor in a particular class, it may be appropriate for their higher education provider to assist the student to transfer into a different class to protect the student from further detriment. This would not constitute a reprisal.

Protection from reprisals - compensation and other orders etc.

311. Section 35E sets out civil remedies that a person can seek as protection from reprisals. These remedies can be ordered by the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) on the application of a person.

312. Subsection 35E(1) provides for the circumstances in which the Court can order compensation be awarded in relation to a reprisal. If the Court is satisfied that the respondent took or is taking a reprisal against the applicant, the Court may make an order requiring the applicant be compensated for loss, damage or injury as a result of the reprisal.

313. The Court may order either that the respondent compensate the applicant or, if certain circumstances were met, that the respondent's employer compensate the applicant. These circumstances are that the respondent took or is taking the reprisal in connection with their position as an employee of a private registered provider (as it relates to the Overseas Students Ombudsman) or a higher education provider. If the Court orders compensation against a respondent's employer, it may order the employer compensate the applicant:

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entirely for the loss, damage or injury (i.e. instead of the respondent)

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jointly with the respondent (in which case the respondent and their employer would be jointly and severally liable for payment of compensation under subsection 35E(3)), or

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by making multiple orders requiring the respondent and the employer to each compensate the applicant in part.

314. However, the Court cannot order compensation against the respondent's employer if the employer establishes that it took reasonable precautions and exercised due diligence to avoid the reprisal. This ensures that an employer is not liable where they have made their best efforts to prevent an employee from taking a reprisal (subsection 35E(2)).

315. Subsection 35E(4) provides for the circumstances in which the Court can grant an injunction, order an apology or make other non-compensatory orders in relation to a reprisal.

316. If the Court is satisfied that the respondent took or is taking a reprisal against the applicant, the Court may make any or all of the following orders:

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an order granting an injunction restraining the respondent from taking the reprisal or, if the reprisal involves refusing or failing to do something, requiring the respondent to do that thing

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an order requiring the respondent to apologise to the applicant

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any other order the Court thinks appropriate.

317. If the Court has the power to make an order under subsection 35E(4) to grant an injunction, subsection 35E(5) provides that the Court may make any other orders it thinks are appropriate against any other person who has done the following in relation to the conduct against the applicant:

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aided, abetted, counselled or procured the conduct

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induced the conduct (regardless of whether this was through threats, promises or anything else)

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been in any way (whether directly or indirectly) knowingly concerned in or a party to the conduct

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conspired with others to effect the conduct.

318. This ensures that the applicant can seek orders against people who are in any way involved in the reprisal action against them, where that action could be restrained or required by an injunction granted by the Court.

319. Subsection 35E(6) provides that the Court may make multiple orders under subsections (1) (compensation) and (4) (injunctions, apologies and other orders) even where this relates to the same conduct. This means that the Court may order payment of compensation and an apology in relation the same reprisal, for example.

320. Subsection 35E(7) sets out matters relating to the burden of proof where the applicant seeks an order or multiple orders under subsections (1) and (4).

321. The applicant would be required to meet the evidential burden of proof in relation to the matters in paragraph 35D(1)(a). This means that the applicant would have to adduce or point to evidence that suggested a reasonable possibility that the respondent engaged in conduct and that conduct resulted in detriment or a threat of detriment to the applicant.

322. If the applicant discharges the evidential burden, the legal burden would then shift to the respondent to prove that the claim is not made out. This requires the respondent to disprove the matters in paragraphs 35D(a), (b) and (c) that:

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they had engaged in conduct that resulted in detriment or threat of detriment to the applicant

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they believed or suspected that the applicant has made, may have made, proposes to make or could make a complaint to the Overseas Students Ombudsman or the National Student Ombudsman

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their belief or suspicion is the reason, or part of the reason, for engaging in the conduct.

323. Placing the legal burden of proof on the respondent is appropriate because the respondent would be best placed to adduce evidence as to their state of mind in engaging in the conduct and demonstrating the basis on which action was taken. This will generally be peculiarly within the respondent's knowledge, and therefore significantly more difficult and costly for the applicant to disprove than for the defendant to establish. This approach is consistent with the approach taken to civil remedies for victimisation under section 1317AD of the Corporations Act 2001.

324. Subsections 35E(8) and (9) sets out matters relating to costs for civil proceedings in relation to reprisals.

325. Subsections 35E(8) and (9) taken together provide that an applicant must not be ordered to pay costs incurred by another party to the proceedings unless the court is satisfied of either of the following:

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the applicant instituted proceedings vexatiously or without reasonable cause

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the applicant's unreasonable act or omission caused the other party to incur the costs.

326. This applies to all proceedings under section 35E including appeals and ensures that applicants are not discouraged from reporting reprisals and seeking remedies out of fear that costs will be awarded against them.

327. Subsection 35E(10) clarifies, for the avoidance of doubt, that a person may bring proceedings under section 35E in relation to a reprisal even if a prosecution for the offence of taking a reprisal under section 35F has not or cannot be brought.

Protection from reprisals - offence

328. Section 35F provides offences for taking reprisal action in relation to complaints to the Overseas Students Ombudsman and National Student Ombudsman.

329. Subsection 35F(1) sets out an offence of taking a reprisal by causing detriment. It provides that person one commits an offence in relation to person two if:

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person one engages in conduct

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engaging in the conduct results in detriment to person two

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when person one engages in the conduct, they believe or suspect that person two has made, may have made, proposes to make or could make a complaint to the Overseas Students Ombudsman or the National Student Ombudsman, and

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person one's belief or suspicion is the reason, or part of the reason, for engaging in the conduct.

330. This offence is punishable by a term of imprisonment for 6 months. Under subsection 4B(2) of the Crimes Act 1914, the term of imprisonment can be converted into penalty units. This penalty is consistent with the penalty attached to a similar offence in section 20ZH of the Ombudsman Act for subjecting or threatening to subject a person to detriment for making a complaint to the Private Health Insurance Ombudsman.

331. Subsection 35F(2) sets out an offence of taking a reprisal by threatening to cause detriment. It provides that person one commits an offence in relation to person two if:

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person one engages in conduct

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engaging in the conduct consists of, or results in, a threat to cause detriment to person two

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person one is reckless as to whether person two fears that the threat would be carried out

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when person one engages in the conduct, they believe or suspect that person two has made, may have made, proposes to make or could make a complaint to the Overseas Students Ombudsman or the National Student Ombudsman, and

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person one's belief or suspicion is the reason, or part of the reason, for engaging in the conduct.

332. This offence is also punishable by a term of imprisonment for 6 months. Under subsection 4B(2) of the Crimes Act 1914, the term of imprisonment can be converted into penalty units.

333. Subsection 35F(4) provides an exception for both of the offences in relation to reasonable administrative action.

334. The offences at subsections 35F(1) and (2) do not apply if the conduct engaged in by person one is administrative action that is reasonable to protect the second person from detriment. As noted above, by way of example, this could include where a higher education provider assists a student to transfer to a different class after they have complained about practices in a particular class.

335. The note to subsection 35F(4) provides that a defendant bears an evidential burden in relation to this matter. This adopts existing policy in subsection 13.3(3) of the Criminal Code.

336. Placing the evidential burden on the defendant would require the defendant to adduce or point to evidence that suggests a reasonable possibility that the matter in subsection 35F(4) exists or does not exist (subsection 13.3(6) of the Criminal Code). If the defendant discharges the evidential burden, the prosecution then has the legal burden of disproving that matter (subsection 13.1(2) of the Criminal Code). In line with the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, it is appropriate to place an evidential burden on the defendant with respect to the matter in subsection 35F(4) because the defendant would be best placed to raise evidence demonstrating that action was taken for the purpose of protecting a person from detriment. This would be significantly more difficult and costly for the prosecution to disprove rather than the defendant establishing this matter.

337. Subsection 35F(5) provides that, when prosecuting an offence under this section, it is not necessary to prove that a person has made, may have made, proposes to make or could make a complaint to the National Student Ombudsman. This is because whether a complaint in fact was or was not made, proposed to be made or able to be made by a person is irrelevant for the purposes of the offence - what is relevant is the defendant's belief or suspicion of any of these possibilities.

338. Notes 1 and 2 to section 35F clarify that the offences at subsections 35F(1) and (2) relate to taking a reprisal against a person as defined in section 35D and, respectively, relate to reprisals that consist of causing detriment to a person or a threat to cause detriment to a person. Note 3 clarifies, for the purpose of subsection 35F(2), proof of intention, knowledge or recklessness will satisfy a fault element of recklessness. This is consistent with existing policy in subsection 5.4(4) of the Criminal Code.

Privacy Act 1988

Item 12: Subsection 50(1) (after paragraph (d) of the definition of alternative complaint body )

339. This item inserts a new paragraph (da) to insert a reference to the National Student Ombudsman into subsection 50(1) of the Privacy Act. Subsection 50(1) of the Privacy Act defines an alternative complaint body for the purposes of that Act, and includes the Commonwealth Ombudsman and several statutory offices established under the Ombudsman Act, including the Overseas Students Ombudsman. This amendment ensures consistency by adding the National Student Ombudsman to the definition, enabling streamlined transfer of complaints to the National Student Ombudsman from the Information Commissioner.

Item 13: After subparagraphs 50(2)(a)(iv) and (3)(a)(iv)

340. This item inserts a new paragraph (ivaa) to insert a reference to the National Student Ombudsman into paragraphs 50(2)(a) and 50(3)(a) of the Privacy Act. This amendment is consequential to the inclusion of the National Student Ombudsman in the definition of an alternative complaint body by item 12. This amendment ensures that the Information Commissioner can transfer a complaint to the National Student Ombudsman under subsection 50(2) and that the complaint will be taken to be a complaint made to the National Student Ombudsman under subsection 50(3).

Tertiary Education Quality and Standards Agency Act 2011

Item 14: After section 194

341. This item inserts section 194A into the TEQSA Act to provide for disclosure of information to the National Student Ombudsman. Section 194A provides that TEQSA may disclose higher education information and personal information to the National Student Ombudsman if the disclosure is for the purposes of assisting the National Student Ombudsman to perform its functions or duties or exercise its powers.

342. This provision provides an information-sharing pathway between TEQSA and the National Student Ombudsman. It enables TEQSA to share a complaint about the actions of a higher education provider in relation to a higher education student with the National Student Ombudsman for the National Student Ombudsman to handle. TEQSA is empowered to share higher education information (defined in the TEQSA Act) concerning a registered higher education provider and personal information (defined in the Privacy Act) of individuals as the complaints made to TEQSA regularly consist of both types of information. While TEQSA is not a complaints-handling body, it does receive information that, in substance, is of the nature of a complaint. This provision would allow TEQSA to share this information with the National Student Ombudsman which would then be able to make contact with the complainant to discuss the matter.

Part 3 - Application and transitional provisions

Item 15: Application of amendments

343. This item sets out how the amendments in the Bill apply.

344. Subsection (1) provides that Part IIF of the Ombudsman Act, being the Part that establishes the National Student Ombudsman, applies in relation to action taken by a higher education provider whether it is taken before, on or after the commencement of this item (later of 1 February 2025 or 1 month after Royal Assent). This ensures that students can make historical complaints about actions of their provider to the National Student Ombudsman. There is no time limit on a student making a complaint provided their higher education provider continues to be registered.

345. Subsection (2) sets out how provisions relating to protection from reprisals apply. Sections 35D, 35E and 35F apply in relation to conduct engaged in on or after commencement of this item (later of 1 February or 1 month after Royal Assent). The effect of this provision ensures that people will be protected from reprisals in relation to complaints to the Overseas Students Ombudsman or National Student Ombudsman in relation to conduct that constitutes a reprisal action that is undertaken from commencement of the Bill.

346. Subsections (3) and (4) set out how certain information-sharing provisions apply.

347. Subsection (3) provides that the amendments to section 35 of the Ombudsman Act apply in relation to making a record of, divulging or communicating information on or after commencement of this item (later of 1 February 2025 or 1 month after Royal Assent) regardless of whether the information is acquired before, on or after commencement. This preserves confidentiality requirements in section 35, including in relation to information that an officer acquired before commencement.

348. Subsection (4) provides that section 194A of the TEQSA Act applies in relation to the disclosure of information occurring on or after commencement of this item (later of 1 February 2025 or 1 month after Royal Assent), regardless of whether the information is obtained before, on or after commencement. This ensures that TEQSA can share relevant information with the National Student Ombudsman, including information that was acquired by TEQSA before commencement.

Item 16: Transitional - annual reports of National Student Ombudsman

349. This item requires the National Student Ombudsman to provide an annual report under subsection 21AX(1) relating to their operations for the period beginning on the day this item commences (later of 1 February 2025 or 1 month after Royal Assent) and ending on the first 30 June after commencement. This item ensures that the National Student Ombudsman provides an annual report for the part of the first financial year that it is operational.

Part 4 - Contingent amendments

Ombudsman Act 1976

Item 17 - Subsection 21AZC(11)

350. This item omits the reference to subsection 35B(2) in subsection 21AZC(11). Section 35B will be repealed by the Intelligence Services Legislation Amendment Bill 2023 once that Bill is passed.

Item 18 - Paragraph 21AZC(11)(b)

351. This item omits the reference to section 6A in paragraph 21AZC(11)(b). Section 6A will be repealed by the Intelligence Services Legislation Amendment Bill 2023 once that Bill is passed.