The intent of this policy is to ensure that all students, staff and affiliates work, research, study, live and socialise in an environment that is based on inclusivity and respect, and free from discrimination, bullying, harassment, including hazing and vilification, and sexual misconduct. The intent of the policy is to also ensure that students, staff and affiliates understand the University’s required accountabilities, and complaint handling principles, including the necessity to afford natural justice to affected persons.
This policy applies to all members of the Council, staff, students, and affiliates of James Cook University (hereinafter described as JCU, or the University) while engaged in conduct or activities undertaken as part of their study, research, work, living and socialising which is associated with JCU. The policy extends to wherever that conduct or activity takes place. The scope of the policy includes conduct or activities that occur at or in connection with (but is not limited to):
- The University’s Australian campuses and study centres
- Managed Student accommodation (including University owned or operated accommodation, and privately owned or operated accommodation, and regardless as to whether the accommodation is within or outside a University campus)
- Sporting and recreational clubs and facilities to the extent that they fall within the University community
- Managed digital environments (including the use of information technology and other University-operated digital platforms), and
- Conduct and activities related to the University’s business that are not conducted on University’s premises, including (but not limited to):
- Field trips
- Placements and internships
- Student camps
- Inter-university events, and
- Parties and other social functions.
The University acknowledges that while performing duties as a staff member, affiliate, or student while undertaking official duties for the University, that person may experience behaviour that constitutes bullying, discrimination, harassment or sexual misconduct at locations outside of the University and/or by an individual not connected with the University. The University will liaise with the responsible authority to ensure proper procedures are followed and will provide support services.
Except as otherwise specified in this policy, the meaning of terms used in this policy are as per the Policy Glossary.
Actions that JCU can take to support a student or staff member who has been subjected to sexual harassment or sexual assault to enable them to continue studying, working, living and socialising at JCU. Accommodations will be developed on a case by case basis, and may include, for example, implementing safety measures, changes to class scheduling, changes to assessment, changes to allocation of student on-campus accommodation or short-term emergency student housing, changes to reporting lines (including Higher Degree by Research (HDR) supervisory arrangements), or temporary or long-term work or workplace reassignment. Accommodations may be provided to a person regardless of whether the person who perpetrated the harassment or assault are associated with JCU. Accommodations can be made as a result of a report, or a complaint. Accommodations are focussed on ensuring a person’s wellbeing.
Is a person (other than a staff member or student, including HDR candidates) who is affiliated with JCU by letter of appointment or invitation to work, research or study at the University for a particular activity and typically for a prescribed timeframe and who is bound to comply with the University’s policies during that period (for example, visiting scholars and adjunct appointees).
Alternative Dispute Resolution
Alternative Dispute Resolution (ADR) refers to methods that sit outside of judicial mechanisms, such as mediation, conciliation, and arbitration as ways to settle disputes. Depending upon the gravity of the report or complaint JCU may use ADR in resolving issues relating to discrimination, bullying and harassment. JCU does not use mediation, conciliation or arbitration processes in addressing reports or complaints of sexual misconduct.
Bullying is repeated and unreasonable behaviour directed towards a person or group of people that creates a risk to health and safety:
- Repeated behaviour is behaviour which occurs more than once and may involve a range of behaviours over time.
- Unreasonable behaviour is behaviour that a reasonable person, having regard for the circumstances, would see as unreasonable, including behaviour that is victimising, humiliating, intimidating or threatening.
The following behaviours do not constitute bullying:
- A single incident of unreasonable behaviour. (However, single or one-off incidents of unreasonable conduct can also cause a risk to health and safety, may breach other University policies and could constitute misconduct.)
- Low level conflict defined as interpersonal conflict or disagreement which is not sufficient to constitute bullying. People can and will disagree with each other.
Reasonable direction and expectations of staff, including as part of performance management procedures.
A bystander includes a person who observes someone bullying, harassing, discriminating against, sexually harassing or sexually assaulting another person.
Child Sexual Abuse
Sexual assault of a child (an individual under 18 years of age) is defined as child sexual abuse and constitutes a criminal offence with mandatory reporting requirements. This policy does not apply to child sexual abuse, including the abuse of students under 18 years of age. All cases involving students under 18 years of age must be referred directly to the Chief of Staff immediately for reporting to the Queensland Police Service.
A complaint is a complainant's expression of dissatisfaction that their rights, existing interests and/or reasonable expectations under this policy have been adversely and unjustifiably affected because of an action, decision or omission within the control or responsibility of JCU.
A complaint involves providing detailed information seeking disciplinary action or other resolution against the respondent. A complaint is different to a report (which is defined below).
A person(s) who makes a complaint about a matter that they wish the University to consider and for which outcome(s) or resolution(s) are explicitly or implicitly expected.
Consent means the free and voluntary agreement to participate in an activity which may include an intimate or sexual relationship given by a person with the cognitive capacity to do so. Consent is not freely and voluntarily given if the person is:
- Under force
- Unconscious or asleep
- Under the influence of drugs or alcohol
- Under threat or intimidation
- In fear of bodily harm
- Subjected to the exercise of authority
- Under false or fraudulent representations about the nature or purpose of the act, or
- Under a mistaken belief that the offender was someone else (for example, their sexual partner).
Consent can be given and subsequently withdrawn at any point.
Discrimination has the same meaning as contained in the Anti-Discrimination Act 1991 (Qld), Age Discrimination Act 2004 (Cth), Disability Discrimination Act 1992 (Cth), Racial Discrimination Act 1975 (Cth), and Sex Discrimination Act 1984 (Cth).
Discrimination, including direct and indirect discrimination, occurs when a person is treated less favourably or harassed in certain areas of life including their employment because of a personal characteristic or attribute, whether real or imputed, including the setting of a requirement, condition or practice that is unreasonable and that people with a particular characteristic cannot meet.
The grounds for which a complaint may be made under this policy include discrimination and harassment based on one or more of the following characteristics:
- Sex or gender
- Relationship status, pregnancy, breastfeeding, parental status and family responsibility
- Sexuality or gender identity
- Disability or impairment
- Race, accent, colour, national or ethnic origin, nationality, ethnicity, descent or ancestry, or immigration
- Religious or political belief or activity
- Trade union activity
- Lawful sexual activity, or
- Personal association with or relation to any person who is identified on the basis of any of the above attributes.
Discrimination can be on the basis of direct or indirect discrimination:
- Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.
- Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term:
- With which a person with an attribute does not or is not able to comply, and
- With which a higher proportion of people without the attribute comply or are able to comply, and
- That is not reasonable.
The following conduct does not constitute unlawful discrimination:
- A person is not offered a job because, notwithstanding that reasonable adjustments have been made, they cannot meet the inherent requirements of the job.
- A student with a disability does not pass the requirements of a course, notwithstanding that reasonable adjustments have been made.
- The University has gained a lawful exemption, or the law otherwise permits the University, to target a job at a particular group of people to help redress disadvantages that group may have experienced in the past.
- The University lawfully implements specific equal employment opportunity or 'affirmative action' strategies, plans or programs designed to ensure genuine equal opportunities in the workplace, particularly in relation to groups that have been disadvantaged in the past.
Duty of care
The University’s duty of care requires all staff, affiliates and students to take reasonable care in order to avoid reasonably foreseeable harm that may arise. The safety and wellbeing of staff, affiliates, students, volunteers and visitors is the first priority in any situation.
Equity Contact Officer(s)
Equity Contact Officers can provide information and referral options for both students and staff regarding this Discrimination, Bullying, Harassment and Sexual Misconduct Policy, and related procedures.
Any member of the University community may be a first responder. A first responder is a person who is the first to become aware (or is confided in by another) that a person has experienced or is currently experiencing an incident/s of sexual harassment or sexual assault.
Harassment occurs when a person, or a group of people, is intimidated, insulted or humiliated because of one or more characteristics, or from working in a hostile or intimidating environment that makes a person feel offended, humiliated or intimidated, and where that reaction is reasonable in the circumstances. Harassment can arise as the result of a single incident as well as repeated incidents (for example, hazing). See further definition of Sexual Harassment below.
Hazing is any action or situation, with or without the consent of the participants, which recklessly, intentionally, or unintentionally endangers the mental, physical, or academic health or safety of staff or students and can include the practice of rituals, challenges, and other activities as a way of initiating a person into a group including a new residential college, team, or club.
The Incident Register is a confidential register that is maintained by the Chief of Staff. All reports and complaints of sexual misconduct are recorded on the Incident Register to enable JCU to identify patterns in behaviours, or high risk University activities or premises, and to monitor progress in eliminating sexual assault or sexual harassment.
Natural justice (also known as procedural fairness) is concerned with the rights and procedures used by a decision-maker in making a decision, rather than the substance of the decision made. It requires a fair and transparent process. The complainant and respondent must both be afforded natural justice, which includes the respondent being sufficiently informed of the allegation to allow for a meaningful response.
Natural justice requires:
- The right to be fully apprised of the allegation(s), including the particulars of the allegation(s)
- The right to be heard
- The right to be treated without bias or conflict of interest, and
- A decision based on evidence.
These rules involve complainants and respondents having a reasonable opportunity to prepare and present a case, and to have their cases considered justly.
Measures or actions undertaken by the University directed at a student, staff member or affiliate, who is alleged to have committed a criminal offence or a breach of discipline. Precautionary measures may be undertaken at an early stage pending the outcome of criminal/disciplinary proceedings. A precautionary measure is not a penalty or sanction and must be reasonable and proportionate. Precautionary measures may be put in place if they are necessary to ensure a full and proper investigation can be carried out (whether by the Police, the University or an investigative body); and/or for the wellbeing of the person subjected to the alleged assault or other persons whilst the allegation is being dealt with. Precautionary measures include options such as reassignment of work, and suspension.
A report is information provided to JCU about an incident or suspected wrongdoing that the person making the report believes to be sexual misconduct. A report can be anonymous, and the person reporting is able to, but does not have to, identify the other person/people involved.
The University can provide support to a person making the report (if they have identified themselves) including accommodations and precautionary measures, and advice about making a complaint.
Reports are processed through the completion of a Sexual Misconduct Report Form and are recorded on the Incident Register.
Representative (or Support Person)
A representative (also referred to as a support person) is a person to assist, accompany and support a complainant, respondent or interviewee in their participation in matters relating to this policy and supporting procedures. A representative may be a friend or family member a staff member, or delegate or staff member of a union that is a party to the JCU Enterprise Agreement; and not a practicing solicitor or barrister.
A person(s) against whom a complaint is made.
Sexual assault is any unwanted or forced sexual act or behaviour without consent.
Sexual Assault occurs when a person:
- Touches or makes contact with another person (and the touching or making contact is sexual in nature) without their consent – groping and any physical contact such as patting, pinching or touching in a sexual way is a form of sexual assault.
- Forces another person against their will to commit an act of gross indecency – a sexual act that does not involve penetration, for example a person forces another person to touch their genitals.
- Forces another person to see an act of gross indecency, for example the person masturbates in front of the other person.
Rape is the most serious form of sexual assault and occurs where a person or persons force another person or persons to have sexual intercourse without his or her consent. Rape includes forcing someone to perform oral sex, digital penetration, and inserting any object into the vulva, vagina or anus of another person without their consent.
Sexual harassment is an unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature that is done either to offend, humiliate or intimidate another person, or where it is reasonable to expect the person might feel that way.
Sexual harassment may include:
- Displays of sexually graphic materials including posters, cartoons or messages left on noticeboards, desks or common areas
- Repeated invitations to develop a closer or intimate relationship after prior refusal
- Unwelcome and uncalled for remarks or insinuations about a person's sex or private life
- Comments of a sexually suggestive nature about a person's appearance or body
- Sexually offensive phone calls
- Offensive emails and text messages of a sexual nature
- Unwanted sexual attention using internet, social networking sites and mobile phones
- Sexually offensive screensavers or posters
- A publication, such as sexually offensive emails or graphics
- Threats online of a sexual nature
- Revenge porn
- Sexual propositions
- Indecent exposure
- Pressuring a student or staff member to engage in sexual behaviour for some educational or employment benefit, or
- Making a real or perceived threat that rejecting sexual behaviour will carry a negative consequence for the student in education, accommodation, or University programme or activity.
Sexual Harassment is unlawful when it falls within the relevant statutory definition under the Anti-Discrimination Act 1991 (Qld) and/or the Sex Discrimination Act 1984 (Cth). Indecent exposure and stalking are criminal behaviours.
Sexual misconduct refers to instances of sexual harassment or sexual assault that the University is notified of, or is responding to. If proven, allegations of sexual misconduct are a breach of this policy and also of the Codes of Conduct that apply to both the staff and students of the University.
University community means the members of the Council, the staff, the students and affiliates of the University, as well as those who use the University's campuses or facilities for work, study, living and socialising, or other authorised activity.
Vilification has the same meaning as contained in the Anti-Discrimination Act 1991 (Qld). Specifically, a person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race, religion, sexuality or gender identity of the person or members of the group.
A complaint is deemed to be vexatious if it is:
- Dishonest or contains intentionally misleading information
- Malicious; pursued with undue persistence
- Has the intent to harass or cause delay or detriment, or
- Is pursued in a manner that threatens, menaces or harasses a member of the Council, the staff, the students or an affiliate of the University.
1.1 The University confirms that:
- The University is committed to the rights of all students, staff and affiliates to work, research, study, live and socialise in an environment that is based on inclusivity and respect.
- All people have a right to an environment free from discrimination, bullying, harassment, and sexual misconduct while engaged in activities undertaken as part of their study, research and work, or other association with JCU.
- Discrimination, bullying, harassment, and sexual misconduct will not be tolerated under any circumstances.
- Discrimination, bullying, harassment and sexual misconduct in employment and education is unlawful under various legislative enactments as listed in the related documents and legislation section of this policy.
- JCU will use educative approaches for the prevention of discrimination, bullying, harassment, and sexual misconduct to inform members of the JCU community of their rights and responsibilities, to encourage the reporting of behaviour, practices or publications that contravene this policy, and ensure JCU's systems and processes are not discriminatory.
- The wellbeing and needs of the person who has been subjected to sexual harassment or sexual assault are at the centre of JCU's response.
- The University's response to sexual assault is integrated with the specialist sexual assault services. The University has referral protocols in place with the sexual assault services and works together with the services to meet the needs of staff and students. The University will provide additional and complementary support services.
- Procedures for bullying, discrimination and harassment are different to the sexual misconduct procedures – see item 2 below.
- Natural justice principles apply to the implementation of this policy as well as the handling of reports and complaints under this policy.
- Except to the extent that disclosure is required, or authorised by legislation, confidentiality will be maintained to the greatest possible extent, with communication limited to persons to whom disclosure is made (consistent with position and responsibility), or those with specific responsibility to assist in the resolution of the complaint.
- Sexual assault against a child is defined as child sexual abuse and constitutes a criminal offence with mandatory reporting requirements.
1.2 JCU acknowledges that:
- Sexual assault and sexual harassment may be perpetrated or experienced by people of any sexual orientation or gender identity and may be a single incident or a persistent pattern of unwelcome behaviour.
- Sexual assault and sexual harassment is overwhelmingly perpetrated by men, and women are overwhelmingly the victims. Gender inequality provides the underlying social conditions for sexual assault and sexual harassment.
- Sexual harassment most often occurs in relationships of unequal power or authority, although it may also take place between peers. In providing a working and learning environment free of harassment, it is important to recognise that certain groups may be particularly vulnerable, including:
- Indigenous women
- People from non-English-speaking backgrounds
- People with disabilities
- People working or learning in non-traditional areas, and
- Women working in isolated areas.
1.3 With respect to sexual misconduct, JCU:
- Encourages any person who has experienced or who has witnessed any sexual harassment or sexual assault by, or toward, a member of the University community to report the incident. A report can be anonymous, and the person reporting is able to, but does not have to, identify the other person/people involved. The University can provide support to a person making the report (if they have identified themselves) including accommodations and precautionary measures.
- All reports and complaints of sexual misconduct are recorded on the Incident Register to enable JCU to identify patterns in behaviours, or areas of the University, and to monitor progress in eliminating sexual assault and sexual harassment.
- Supports any person to make a decision about making a complaint to the University. The University understands the decision to make a complaint can be complex.
- Will follow due process, and afford natural justice to all parties. The University will ensure that there are single points of contact whenever possible.
- Individual wellbeing and the reduction of harm are key drivers in any response to sexual assault.
2. Procedural differences for addressing bullying, discrimination and harassment, and sexual misconduct
2.1 There are different procedures for managing incidents for bullying, discrimination and harassment, and sexual misconduct. The key difference is that in all cases with sexual misconduct, the University has no expectation or suggestion that the person who is subject to sexual harassment or sexual assault needs to address the behaviour directly with the alleged perpetrator. Processes related to Alternative Dispute Resolution, such as conciliation or mediation are not considered appropriate in cases of sexual assault or sexual harassment. Instead, JCU will address the behaviour through a manager or supervisor, College Dean, or other appropriate person.
2.2 Bullying, discrimination and harassment:
- For staff and affiliates: bullying, discrimination and harassment are addressed through the Discrimination, Bullying and Harassment Complaint Procedure for staff and affiliates.
- For students: bullying, discrimination and harassment are addressed through the Student Complaints Management Policy and Procedures.
2.3 Sexual Misconduct:
- For staff, affiliates and students: sexual misconduct is addressed through the Sexual Assault Procedure and the Sexual Harassment Procedure.
3. Consequences of Breach
3.1 Breaches of this policy by a member of the Council, a staff member, an affiliate, or a student will constitute a breach of discipline of the University, and the University may instigate disciplinary proceedings for the alleged breach of discipline.
3.2 In respect of Item 3.1 above, breaches of this policy will be addressed through the University’s disciplinary procedures prescribed for staff (including the University’s Code of Conduct and the Enterprise Agreement as amended or replaced from time to time), students (including the Student Conduct Policy), and affiliates. Depending upon the severity and implications of the breach, sanctions may include legal action, a formal warning, retraining, and/or other disciplinary action (such as suspension or termination of employment, or suspension or exclusion from the University).
4. Accountabilities and responsibilities
4.1 Every member of the University Community, has the following obligations:
- To take reasonable care for their own health and safety
- To take reasonable care for the health and safety of others
- To comply with any reasonable instruction from JCU, and
- To comply with all applicable JCU Policies and Procedures.
4.2 A bystander who observes someone bullying, harassing, discriminating against, sexually harassing or sexually assaulting another person, should address the person offending at the time, if they are able to, and it is safe to do so. Bystanders should let the person subjected to the offence know that they have noticed and ask what they can do to help.
4.3 Some members of the University community have further obligations in respect of their positions or delegated authority that it is their responsibility to understand.
4.4 Managers and supervisors:
- Members of the University community in management or supervisory positions have responsibility to ensure that, when an instance of bullying, harassment, discrimination or sexual misconduct is brought to their attention, they take appropriate action to address or remedy the situation expeditiously. They need to:
- Ensure other members of the University community under their supervision, whether these be staff, affiliates, volunteers, and students are familiar with JCU's policies and procedures regarding conduct, and undertake mandated training where required.
- Discuss the University's Bullying, Discrimination, Harassment and Sexual Misconduct Policy, and related procedures at staff and student meetings, and check for understanding.
- Ensure all staff are aware of the Code of Conduct
- Ensure all students are aware of the Student Code of Conduct
- Model exemplary behaviours in this regard themselves
- Monitor workplace behaviours to ensure compliance with policies
- Remove any inappropriate material, including sexually inappropriate material, from the work or study environment
- Take appropriate and early action using relevant procedures when they observe instances of potential bullying, discrimination and harassment, or sexual misconduct, even without or prior to a report or complaint being made.
- Follow up promptly and undertake appropriate action when a bullying, discrimination and harassment, or sexual misconduct matter is raised with them.
- Advise and/or refer parties to relevant support services, policies and procedures.
- Support the work of the Equity Contact Officers.
- Maintain the confidentiality required by this policy, and
- Seek the advice of the Sexual Misconduct Officers if an incident of sexual harassment or sexual assault is identified or reported.
4.5 Director Human Resources (HR):
- The Director HR, in addition to the accountabilities and responsibilities identified within other JCU policies and procedures, and the JCU Enterprise Agreement, will facilitate the provision of education and information to discourage bullying, discrimination and harassment, and sexual misconduct for staff; and monitoring the effectiveness of this policy.
4.6 Dean Learning, Teaching and Student Engagement (LTSE):
- The Dean LTSE will facilitate the provision of education and information to discourage bullying, discrimination and harassment, and sexual misconduct for students, including supporting Residential Assistant training within the residential colleges, the JCU Student Associate advocates and contracted security staff; and monitor the effectiveness of this policy including through counselling services provided by Student Equity and Wellbeing.
4.7 Equity Contact Officers:
- Equity Contact Officers (ECO) are identified members of the University community who have received training in these roles as required by the Director HR. Support provided by ECOs may include, but is not limited to:
- Assisting staff and students to clarify the outcome(s) they are seeking to the problem and provide information and/or referral to informal and formal resolution processes available
- Providing staff and students with copies of the relevant University policies and procedures and the options available in those documents, including taking no further action, and
- Advising or assisting the complainant or the respondent, but not both.
- An ECO must not:
- Advocate, investigate, mediate or provide any resolution for a complainant or respondent
- Assist staff or students where they may have an actual or perceived conflict of interest, and
- Provide advice of a legal nature to any person.
4.8 Director Student Services:
- The Director Student Services has accountabilities and responsibilities under the Student Code of Conduct and Misconduct Procedures where the respondent to a complaint of bullying, discrimination or harassment, is a student.
4.9 Sexual Misconduct Officers:
- A Sexual Misconduct Officer will provide a single point of contact for a person who has made a report or complaint of sexual harassment or sexual assault. These University officers can facilitate accommodations and precautionary measures.
- Sexual Misconduct Officers have accountabilities and responsibilities under the Sexual Harassment Procedures, and Sexual Assault Procedures for both staff and students.
- Designated Sexual Misconduct Officers at the University are the Chief of Staff, Manager Student Equity and Wellbeing (for students), and the Manager of Staff Equity and Diversity (for staff).
Related Policy Instruments
Bullying, Discrimination and Harassment Complaint Procedure for Staff and Affiliates
Sexual Assault Procedure
Sexual Harassment Procedure
Code of Conduct
Explanatory Statement to the Code of Conduct
Student Code of Conduct and Misconduct Procedures
Higher Degree by Research Code of Practice
Social Media Policy
Acceptable Use of ICT Policy
Student Complaint Management Policy and Procedures
JCU Enterprise Agreement
Report an Incident of Sexual Misconduct
Related Documents and Legislation
Age Discrimination Act 2004
Australian Human Rights and Equal Opportunity Commission Act 1986
Disability Discrimination Act 1992
Disability Standards for Education 2005
Fair Work Act 2009
Racial Discrimination Act 1975
Sex Discrimination Act 1984
Workplace Gender Equality Act 2012
Queensland State Laws
Anti-Discrimination Act 1991
Criminal Law Amendment Act 1993
Disability Services Act 1992
Industrial Relations Act 2016
Work Health and Safety Act 2011
Workers Compensation and Rehabilitation Act 2003
Date for next review:
|18-1||17/08/2017||20/08/2018||Major review including increase in definitions, identification of procedures for sexual harassment and sexual assault and new roles of Sexual Misconduct Officers||Chief of Staff|
Minor amendment to clause 1.1, changed ‘respondent’ to ‘complainant’
Chief of Staff
Changes to definition of Sexual Harassment as approved by Council 07/09/2017
Chief of Staff
Major review, changes made to Discrimination and Harassment Policy including name change and change of policy domain.
Chief of Staff