Illusions of accountability: the tertiary education quality and standards agency’s regulation of sexual violence in Australian university settings

ABSTRACTThe issue of sexual assault and sexual harassment in Australian university settings has received heightened attention in recent years. Despite efforts to strengthen institutional responses, national survey data suggests that efforts by the Australian university sector and the national higher education regulator, the Tertiary Education Quality and Standards Agency (TEQSA), have failed to reduce the incidence of sexual assault and sexual harassment, increase student awareness of university policies, improve reporting rates, enhance complainant satisfaction with university responses, or achieve institutional accountability and transparency in the management and prevention of campus-based sexual violence. These institutional and regulatory failings adversely impact on Australian university students’ right to education. Drawing on my doctoral research, this article examines the role of TEQSA in oversighting university efforts to prevent and respond to sexual assault and sexual harassment following the release of the Australian Human Rights Commission’s landmark 2017 Change the Course report. Reflecting on the agency’s regulatory interventions over the past six years, the article suggests that any ongoing role for TEQSA in relation to campus-based sexual violence needs to be carefully considered.KEYWORDS: Campus-based sexual violenceAustralian universitiesTertiary Education Quality and Standards Agencyregulationaccountabilitytransparency AcknowledgementsThe author would like to thank the participants of her doctoral research and the AJHR editors for their feedback on this article. The author's PhD research was supported by a UNSW Faculty of Law & Justice PhD Scholarship.Disclosure statementNo potential conflict of interest was reported by the author(s).Notes1 Department of Education, ‘Australian Universities Accord’, Australian Government (Web Page) accessed 19 September 2023.2 The Hon Jason Clare MP (Minister for Education), ‘Higher Education Support Amendment (Response to the Australian Universities Accord Interim Report) Bill 2023’ (Speech, 3 August 2023) .3 International Covenant on Economic, Social and Cultural Rights, opened for signature 19 December 1966, 993 UNTS 3 (entered into force 3 January 1976); International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976); Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 1 March 1980, 1249 UNTS 13 (entered into force 3 September 1981) (CEDAW).4 Criminal Code 1899 (Qld) s 349; Crimes Act 1900 (ACT) s 54; Crimes Act 1900 (NSW) s 61I; Criminal Code 1913 (WA) s 325; Criminal Code Act 1924 (Tas) s 185; Criminal Law Consolidation Act 1935 (SA) s 4; Crimes Act 1958 (Vic) s 38; Criminal Code 1983 (NT) s 192.5 Anti-Discrimination Act 1977 (NSW) Part 2A; Sex Discrimination Act 1984 (Cth), Part 2 Div 3; Equal Opportunity Act 1984 (WA) Part 2 Div 4; Equal Opportunity Act 1985 (SA) s 87; Anti-Discrimination Act 1991 (Qld) Ch 3; Discrimination Act 1991 (ACT) Part 5; Anti-Discrimination Act 1992 (NT) s 22; Anti-Discrimination Act 1998 (Tas) s 17; Equal Opportunity Act 2010 (Vic) Part 6.6 CEDAW (n 3) art 10.7 Australian Human Rights Commission, Change the Course: National Report on Sexual Assault and Sexual Harassment at Australian Universities (Report, 1 August 2017) .8 Social Research Centre, National Student Safety Survey: Report on the Prevalence of Sexual Harassment and Sexual Assault Among University Students in 2021 (Report, March 2022) .9 The Threshold Standards are made by the Commonwealth Minister for Education by legislative instrument and specify the requirements that a higher education provider must continue to meet to be registered by TEQSA to operate in Australia as a provider of higher education: Tertiary Education Quality and Standards Agency Act 2011 (Cth) Part 5 (TEQSA Act).10 Michael Power, The Audit Society: Rituals of Verification (Oxford University Press, 1997) 123.11 The Hon Julia Gillard MP (Commonwealth Minister for Education, Employment and Workplace Relations) ‘BUDGET 2009-10: New Agency to Set Quality Benchmarks in Higher Education’ (Media Release, 12 May 2009) .12 Denise Bradley and others, Review of Australian Higher Education: Final Report (Report, December 2008) .13 Ibid. Recommendations 19 and 20.14 See for example, Joanna Mather, ‘Go8 Lashes Tertiary Regulator’, Australian Financial Review (Sydney, 21 May 2012) 27; ‘Unis Hit by Reform Red Tape: Hilmer’, The Australian (online, 26 July 2012); Bernard Lane, ‘Defiant Regulator Rejects Claims of ‘Smothering’, The Australian (Sydney, 5 September 2012) 27; Glenn Withers, ‘Beware Heavy-handed Intervention’, Australian Financial Review (Sydney, 17 September 2012) 26; Paul Jump, ‘Canberra’s Watchdog: Teething Pains or Too Many Teeth?’ The Times Higher Education Supplement (online, 22 November 2012) .15 Kwong Lee Dow and Valerie Braithwaite, Review of Higher Education Regulation (Report, 2013) 56 .16 Ibid 29.17 Tertiary Education Quality and Standards Agency Act 2011 (Cth) – Ministerial Direction No 2 of 2013 (22 October 2013).18 Senate Education and Employment Legislation Committee, Parliament of Australia, Budget Estimates 2018–2019 (31 May 2018) Hansard, 169–70; Daniel Hurst, ‘Higher Education Regulator Was Not Consulted About Budget Changes’, The Guardian (online, 5 June 2014) .19 A 2017 review found that the early problems had been remedied: Deloitte Access Economics, Review of the Impact of the TEQSA Act on the Higher Education Sector (Report, March 2017) .20 Tertiary Education Quality and Standards Agency, No Place for Sexual Assault in Higher Education (Media Release, 22 February 2018).21 Senator the Hon Simon Birmingham (Minister for Education and Training), ‘University Sexual Assault and Sexual Harassment’ (Media Release, 1 August 2017) < https://ministers.dese.gov.au/birmingham/minister-statement-university-sexual-assault-and-sexual-harassment>.22 The Hon Dan Tehan MP (Minister for Education), ‘Statement on TEQSA Report’ (Media Release, 25 January 2019) .23 Fair Agenda and others, ‘Joint Statement Calling for a Taskforce to Address University Sexual Violence’ (Media Release, 22 February 2018) .24 Tertiary Education Quality and Standards Agency, Report to the Minister for Education: Higher Education Sector Response to the Issue of Sexual Assault and Sexual Harassment: An Overview of Australian Higher Education Provider Responses to the Issue of Sexual Assault and Sexual Harassment (Report, 25 January 2019) .25 Ibid Appendix 1.26 Ibid 11.27 Tehan (n 22).28 Universities Australia, Unis Lead to Prevent Sexual Assault and Sexual Harassment in Society (Media Release, 25 January 2019) .29 Geoff Maslen, ‘Universities Commended for Tackling Sexual Harassment’, University World News (online, 30 January 2019) .30 Sian Powell, ‘Unis Applauded for Anti-assault Work’, The Australian (online, 5 February 2019).31 Allison Henry, ‘Regulatory responses to addressing and preventing sexual assault and harassment in Australian university settings’ (PhD thesis, UNSW 2023) .32 Tertiary Education Quality and Standards Agency, Guidance Note: Wellbeing and Safety (January 2018, Version 1.2) ; Tertiary Education Quality and Standards Agency, Guidance Note: Grievance and Complaint Handling (22 February 2019, Version 1.1) ; Tertiary Education Quality and Standards Agency, Good Practice Note: Preventing and Responding to Sexual Assault and Sexual Harassment in the Australian Higher Education Sector (9 July 2020) .33 Threshold Standards (n 9) Standard 2.3.34 Applications for renewal of registration are considered by TEQSA on a rolling seven-year cycle, with an assessment of compliance with the Threshold Standards undertaken when providers apply for renewal of their registration: see TEQSA Act (n 9) Part 3 Div 3.35 Higher education providers must notify TEQSA of events that occur, or risks, that will significantly affect their ability to meet the requirements of the Threshold Standards: TEQSA Act (n 9) s 29(1).36 Allison Henry, ‘Review of Australia’s Higher Education System: Discussion Paper consultation’ (Submission to Australian Universities Accord Panel, 11 April 2023) .37 TEQSA Act (n 9) Part 7.38 Henry, ‘Regulatory responses to addressing and preventing sexual assault and harassment in Australian university settings’ (n 31).39 Australian Universities Accord Interim Report, 19 July 2023, 21 accessed 22 September 2023.40 Senate Legal and Constitutional Affairs References Committee, Current and proposed sexual consent laws in Australia (Report, September 2023) [5.105] .41 Ibid [5.102].42 TEQSA Act (n 9) ss 198, 204.43 TEQSA Act (n 9) s 3.Additional informationNotes on contributorsAllison HenryAllison Henry is a Research Fellow and Associate with the Australian Human Rights Institute at the Faculty of Law & Justice at UNSW Sydney. She completed her thesis, ‘Regulatory responses to addressing and preventing sexual assault and harassment in Australian university settings’, in May 2023. Previously, she was the Campaign Director of The Hunting Ground Australia Project from 2015 to 2018, a collaborative impact campaign that was instrumental in raising awareness of sexual violence on Australian university campuses.