News from the Court of Appeal in Queensland – for the time being at least, the campus kangaroo courts remain in business, ready to destroy lives of male students across Australia.
True to form, the University Queensland chose to appeal last year’s Supreme Court decision that determined that it is not the place of the university to investigate and adjudicate sexual assault. In this case, which involved a UQ medical student accused of sexual assault by another student, Supreme Court Justice Anne Lyons determined that judgments regarding criminal behaviour must be decided by the criminal law system, not a group of university administrators.
Justice Ann Lyons commented:
“It would indeed be a startling result if a committee comprised of academics and students who are not required to have any legal training could decide allegations of a most serious kind without any of the protections of the criminal law.”
But now UQ has won their appeal. The decision by the Court of Appeal in Queensland overruled Lyon’s reasoning that it is not appropriate for universities to deal with criminal matters. The appeal judges concluded that it’s fine for universities to investigate and make decisions about sexual assault and impose their own sanctions on these students.
As for Justice Lyons’ concern about procedural fairness, the appeal judgement acknowledged that this was in an issue in the UQ case:
“Her Honour was rightly concerned by the prospect that such a serious finding might be made as the outcome of a process which, in many respects, seems unsuited to a factual inquiry of this kind. Except with the leave of the Disciplinary Board, Y was not to have a lawyer present during this hearing. It is far from clear that he was to be given an opportunity to cross-examine the complainant, at least by asking her questions directly, rather than “through the decision-maker” as is suggested by s 5.7.1 of the “Student and Integrity and Misconduct – Guidelines”. Hearings are to follow “an inquisitorial model”. And I agree with her Honour that one particular cause for concern is that the Disciplinary Board would be comprised of persons, none of whom need have any legal training, especially as Y would not have legal representation.”
But in this highly technical decision, whilst accepting the chances are that Y wouldn’t have received fair treatment, the appeal revolved around the key question of whether universities have the right to determine such matters.
Here’s the final sentence from the author of the appeal judgement, Justice McMurdo, on the question of procedural fairness:
“I am unable to accept that in no such case could a hearing of an allegation of this kind be conducted with procedural fairness to the student.”
That’s just hunky dory, isn’t it? The learned Justice acknowledges that the UQ procedures are grossly unfair to accused student – a situation which applies in universities across Australia. But since it is just possible that a university could do a great job usurping criminal justice, we’ll just let this issue slide by.
So, the end result is everyone was a winner. The UQ student managed to graduate before the appeal was heard so he avoided disciplinary action from the university. And the University of Queensland and all similar tertiary institutions will be delighted to learn they can keep running their kangaroo courts. No one is going to appeal to a higher court over this one.
Naturally, the decision brought a huge smile to the faces of the End Rape on Campus activists largely responsible for bullying the universities into setting up the whole apparatus. No doubt, Nina Funnell was particularly delighted, as this former rape victim has made her journalistic career out of championing the kangaroo courts and attacking me.
It was hardly a surprise to see Funnell’s law firm, Marque Lawyers, taking the opportunity to gloat about this set back to my campus campaign. “Campus rape case ruling a blow to Bettina Arndt’s kangaroo court crusade” ran the headline in this week’s Crickey.com article, written by Marque CEO Michael Bradley.
Some of you may remember this hilarious letter written by the eminent Brisbane QC Tony Morris, who kindly acted on my behalf when Marque threatened me with defamation when I called out the misinformation Funnell was publishing about me. During this year’s media pile-on, orchestrated by Funnell, Marque sent defamation threats to media which gave me a chance to defend myself.
Bradley’s take on the issue is interesting, supporting the appeal judgement that “institutions can empower themselves to investigate allegations of such misconduct and make determinations as to whether, as a matter of fact, what is alleged did occur. If so satisfied, they can impose sanctions as their rules permit, for example, expelling a student. Their power to do all this is contractual: if you enrol at a university, you submit to its conduct rules.”
He does admit to the procedural fairness problem but says there is a solution: “If the process is unfair, or the result unsound, the courts will declare it void.”
Oh yes, students are really well placed to take on the deep pockets of universities in the courts, and fight to have unfair treatment acknowledged. What a good idea.
But Bradley goes on: “In a sense, these processes do resemble kangaroo courts. Because of their nature, and particularly because proof is required only on the civil standard (balance of probabilities) rather than the criminal, the risk of perverse outcomes is higher than in a criminal court. However, that does not make them illegitimate and certainly not illegal.”
Well, right now they are not seen as illegal but that may change. And as for the matter of legitimacy, watch this space. We have big plans afoot to put that to the test in a very public way.