Senate

Explanatory Memorandum

(Circulated by authority of the Minister for Education, the Hon Jason Clare MP)

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

Universities Accord (National Higher Education Code to Prevent and Respond to Gender-based Violence) Bill 2025

Universities Accord (National Higher Education Code to Prevent and Respond to Gender-based Violence) (Consequential Amendments) Bill 2025

The Universities Accord (National Higher Education Code to Prevent and Respond to Gender-based Violence) Bill 2025 and the Universities Accord (National Higher Education Code to Prevent and Respond to Gender-based Violence) (Consequential Amendments) Bill 2025 (together, the Bills) are 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 Bills

The Government is taking strong action to prevent and respond to gender-based violence in higher education.

The Universities Accord (National Higher Education Code to Prevent and Respond to Gender-based Violence) Bill 2025 (the Bill) will establish a new standalone regulatory framework which seeks to reduce the incidence of gender-based violence, prioritise safety, proactively strengthen prevention efforts, improve the response to gender-based violence and hold providers accountable for their performance, including in student accommodation.

The Bill is being introduced with the Universities Accord (National Higher Education Code to Prevent and Respond to Gender-based Violence) (Consequential Amendments) Bill 2025 (Consequential Bill).

Over the last several years evidence has shown that gender-based violence – and in particular sexual violence and harassment – continues to occur in higher education communities at significant rates. Many students and staff do not know where to seek support or make a formal complaint to their higher education provider, and those that do are often dissatisfied with the process.

Students and staff deserve to feel and be safe in higher education and providers must do more to prevent and respond to gender-based violence.

The Bill provides a power for the Minister to make the National Higher Education Code to Prevent and Respond to Gender-based Violence (National Code) as a legislative instrument. The National Code will set standards and requirements that higher education providers must meet to ensure:

•

study, work, social and living environments are safe, respectful and inclusive for staff and students; and

•

providers work to prevent, reduce and eliminate gender-based violence to the greatest extent possible; and

•

providers effectively respond to gender-based violence in a way that prioritises and protects safety, health and wellbeing; and

•

providers address the factors that drive and contribute to gender-based violence; and

•

providers have effective governance arrangements in place to prevent and respond to gender-based violence across all of their operations and at all levels of their organisations.

It is proposed that accountability for compliance with the National Code will sit at the highest level of the provider's organisation and regular reporting to a provider's governing body on incident data, and efforts to prevent and respond to gender-based violence will be required.

Change is also proposed to be driven by requirements in the National Code for providers to develop a Gender Equality Action Plan, Gender Impact Assessments and provide evidence-based education and training on the factors that drive and contribute to gender-based violence.

It is also proposed the National Code will require policies, procedures and processes for responding to gender-based violence in a trauma informed way and ensuring key functions are undertaken by people who have the appropriate skills and expertise.

This will help to drive cultural change and improve experiences and outcomes for people who disclose their experience of gender-based violence, strengthening their autonomy to ensure they are heard and appropriately supported.

To monitor and enforce the National Code, a new specialist gender-based violence unit is being established within the Department of Education (Department). The unit will provide guidance, education and advice to support higher education providers to understand and comply with the National Code.

The Bill provides the Secretary with a range of powers to enable the unit to monitor and respond to non-compliance with the Bill or the National Code, including

•

monitoring and investigation powers;

•

the ability to request information;

•

the power to issue compliance notices, infringement notices and to enter into enforceable undertakings; and

•

the ability to seek civil penalties and injunctions through a court.

To strengthen provider transparency and accountability, the Bill enables the Secretary to disclose information to the public about a higher education provider's compliance with the Bill and the National Code.

Annual reporting on the unit's operations and performance of functions will be publicly available and tabled in both Houses of Parliament.

The Secretary will be able to share information with relevant regulatory and other bodies where relevant to their functions and powers, and for certain purposes.

The Consequential Bill amends the Higher Education Support Act 2003 (HESA) to make compliance with the National Code a quality and accountability requirement for higher education providers approved under that Act. This will mean that a higher education provider's non-compliance with National Code may also have consequences for that provider's approval under HESA. For example, the Minister for Education could take action to suspend or revoke a provider's approval under Division 22 of HESA.

The National Code is a key measure of the Action Plan Addressing Gender-based Violence in Higher Education (Action Plan), agreed to by all Education Ministers on 23 February 2024.

The National Student Ombudsman, another key measure of the Action Plan, commenced on 1 February 2025 and enables higher education students to escalate complaints about the actions of their higher education provider, including gender-based violence complaints.

Together, these measures will ensure greater oversight and accountability of higher education providers and help drive the social change we need to see in the higher education sector to prevent and respond to gender-based violence.

Human rights implications

The Bills engage 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), and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW);

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the right to equality and non-discrimination – article 26 of the International Covenant on Civil and Political Rights (ICCPR);

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the right to physical and mental health – article 12 of the ICESCR;

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the right to fair trial and fair hearing rights – Article 14(2), 14(3) of the ICCPR;

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the right to privacy and reputation – Article 17 of the ICCPR; and

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the right to work and rights in work – Article 6, 7 of the ICESCR, and article 14 of CEDAW

Right to education

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.

CEDAW requires measures to be taken to ensure, on a basis of equality of men and women, the same conditions for access to studies and for the achievement of qualifications in educational establishments including in pre-school, general, technical, professional and higher technical education, as well as in all types of vocational training.

Gender-based violence can have negative impacts on the mental health, physical health and wellbeing of people who have experienced it. For students, it can affect their ability to remain in study.

The Bills promotes the right to education by establishing a new regulatory framework to ensure higher education providers prevent and respond to gender-based violence in their communities so students can reach their academic potential.

Section 15 of the Bill provides a power for the Minister of Education to make a National Code as a legislative instrument. The National Code will set requirements that all higher education providers must meet to ensure:

(a)

study, work, social and living environments are safe, respectful and inclusive for staff and students; and

(b)

providers work to prevent, reduce and eliminate gender-based violence to the greatest extent possible; and

(c)

providers effectively respond to gender-based violence in a way that prioritises and protects safety, health and wellbeing; and

(d)

providers address the factors that drive and contribute to gender-based violence; and

(e)

providers have effective governance arrangements in place to prevent and respond to gender-based violence across all of- their operations and at all levels of their organisations.

The Bill provides the Secretary with a range of powers to monitor and enforce compliance with the National Code, ensuring higher education providers are accountable in their efforts to preventing and responding to gender-based violence.

The Consequential Bill amends HESA to make compliance with the National Code a quality and accountability requirement for higher education providers approved under that Act. This will mean that a higher education provider's non-compliance with National Code may also have consequences for that provider's approval under HESA. For example, the Minister for Education could take action to suspend or revoke a provider's approval under Division 22 of HESA. If the Minister revoked a provider's approval, then this could limit the right to education because a student at that provider would no longer be able to receive Commonwealth assistance and may need to cease their studies or change providers.

It is highly unlikely that this would ever eventuate, noting the seriousness of the Minister taking such action under HESA. However, there are safeguards in place to ensure such action is not taken lightly. For example, the Minister would need to comply with the process requirements set out in Division 22 of HESA, prior to taking action to suspend or revoke a provider's approval. This would include the Minister being satisfied that taking such action is appropriate in the circumstances and giving the higher education provider the opportunity to make a submission, which the Minister would then need to consider prior to making a decision.

The changes made to HESA by the Consequential Bill are necessary to ensure the legitimate policy objective of the Bill is achieved; that is, to ensure that higher education providers are preventing and responding to gender-based violence.

Improving provider performance in preventing and responding to gender-based violence will improve student safety and wellbeing, helping students to fully participate in education which promotes the right to education.

Right to equality and non-discrimination, and rights to physical and mental health

Article 26 of the ICCPR recognises that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Women students, First Nations students, students with disability, LGBTIQA+ students, non-binary students and transgender students experience sexual violence at higher rates than others ^[1] .

The UN Committee on the Elimination of All Forms of Discrimination against Women has stated that gender-based violence, including domestic violence is a form of discrimination that seriously inhibits women's ability to enjoy rights and freedoms on a basis of equality with men.

Article 12 of the ICESCR requires that State Parties to the Covenant recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. The UN Committee on Economic, Social and Cultural Rights has stated that the right to health embraces a wide range of socio-economic factors that promote conditions in which people can lead a healthy life, extending to underlying determinants of health such as safe and healthy working conditions.

In 2021, the National Student Survey showed that one in 20 students had been sexually assaulted since they started university and one in six had been sexually harassed.

Gender-based violence can have negative impacts on the mental health, physical health and the wellbeing of people who experience it. For students, it can affect their ability to remain in study. Trauma can make them less able to attend and participate in classes, in some instances, they may withdraw from their study. For staff, the effects of gender-based violence can result in reduced performance and absenteeism, representing a barrier to career progression and advancement. Survey data also shows that one in 3 higher education staff reported personal experiences of sexual harassment, and women and non-binary staff were more likely to experience sexual harassment than men ^[2] .

The Bills promote equality and non-discrimination, and supports rights to physical and mental health through the power to establish the National Code and the subsequent regulation of the Bill and the National Code.

Section 16 of the Bill provides that the purpose of the National Code is to set national standards for higher education providers in connection with preventing and responding to gender-based violence to ensure:

(a)

study, work, social and living environments are safe, respectful and inclusive for staff and students; and

(b)

providers work to prevent, reduce and eliminate gender-based violence to the greatest extent possible; and

(c)

providers effectively respond to gender-based violence in a way that prioritises and protects safety, health and wellbeing; and

(d)

providers address the factors that drive and contribute to gender-based violence; and

(e)

providers have effective governance arrangements in place to prevent and respond to gender-based violence across all of their operations and at all levels of their organisations.

Gender inequality is a key driver of gender-based violence. The National Code will seek to advance gender equality, including through proposed requirements for providers to develop a Gender Equality Action Plan, Gender Impact Assessments and provide evidence-based education and training on the drivers of gender-based violence.

Section 26 of the Bill provides that the Secretary may provide guidance, education and advice to support higher education providers to understand the causes of, and the factors that contribute to gender-based violence, including examples of best practice in the prevention and response to gender-based violence.

The Bill also provides the Secretary with a range of powers to hold providers accountable and ensure they are complying with the Bill and the National Code, including:

o

monitoring (section 35) and investigation powers (section 36)

o

the ability request information and documents (sections 22 and 27)

o

power to issue compliance notices (section 32), infringement notices (section 38) and to enter into enforceable undertakings (section 39), and

o

ability to seek civil penalties (section 37) and injunctions through a court (section 40). 

Further, the changes made by the Consequential Bill will also provide another mechanism for the Commonwealth to encourage and ensure compliance with the National Code by HESA approved providers and would provide an additional regulatory tool for the Department in relation to serious and sustained non-compliance.

Through the regulation of the Bill and the National Code instrument, higher education providers' performance in preventing and responding to gender-based violence will be improved, which will help to reduce the incidence of gender-based violence. As a result, the Bills promotes the right to equality and non-discrimination and supports the rights to physical and mental health.

Right to a fair trial and hearing

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.

The Bill empowers the Secretary to request information and documents under section 27 for the purposes of the Secretary's functions under, or the higher education provider's compliance with, the Bill or the National Code. The Bill abrogates the privilege against self--incrimination and penalty privilege by providing that a person is not excused from giving information or producing a document on the grounds that it may incriminate them or expose them to a penalty. The abrogation of this privilege is necessary to ensure the Secretary can appropriately monitor and enforce compliance with the Bill and the National Code, noting individuals may be in possession of documents relevant to these functions which may also incriminate them.

The abrogation of the privilege against self-incrimination operates together with a use immunity, which limits the use of potentially self-incriminating information, documents or things obtained directly or indirectly as a consequence of giving the information or producing the document, copy or thing in civil proceedings or criminal proceedings, other than proceedings related to sections 137.1, 137.2 or 149.1 of the Criminal Code. This ensures that any information or document, copy, or thing, produced will be admissible only in a very limited range of proceedings related to misleading or obstructing Commonwealth officials. Allowing evidence to be admissible in these proceedings is necessary to safeguard the integrity of information being provided to the Secretary.

Right to privacy and reputation

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.

The Bill would engage the right to privacy by establishing a framework under which the Secretary may collect, use and disclose information (including personal information of students and staff).

The Bill includes several information gathering provisions that are necessary for the performance of the Secretary's functions and exercise of the Secretary's powers under the Bill and National Code. While the Bill enables the collection of personal information in particular circumstances, this collection will only occur rarely and only where it is absolutely necessary to ensure the accountability of higher education providers in preventing and responding to gender-based violence and only in line with included safeguards.

The Minister may, under section 22 of the Bill, make rules that may provide for the information that must be given to the Secretary, when the information must be given, the manner and form in which the information must be given, and timeframes for the giving of information. This section makes it clear that providers may be required to provide personal information, which is likely to include details of a higher education provider's Vice -Chancellor or Chief Executive Officer and details of a day-to-day contact person, including their title, full name, phone number and email address.

It is necessary for the rules to be able to require providers to give the Secretary personal information to ensure the Secretary has the details for relevant people at the higher education provider who can be contacted as part of the Secretary exercising their powers and functions under the Bill. This information will only be collected with the consent of the person whose records are being shared. When collecting this information, the Department will ensure higher education providers are asked to declare that they have obtained the consent of the relevant officer/s before disclosing that information to the Department.

Under section 27 of the Bill, the Secretary will be able to request information and documents from a person who is a higher education provider or who is or was connected to a higher education provider for the purposes of the Secretary's functions under, or the higher education provider's compliance with, the Bill or the National Code. For example, student and staff records could potentially be requested to ascertain if a higher education provider has followed its internal policies and procedures and reflected this in practice when preventing and addressing gender-based violence in their institution. While this power enables the Secretary to request personal information, this information would be collected very rarely and only when the Secretary cannot otherwise reasonably ascertain a higher education provider's compliance with the Bill and the National Code through other information provided by the higher education provider. The Secretary will primarily utilise de-identified and aggregated data to determine if there are any systemic issues with the provider, rather than at an individual level.

Section 42 of the Bill authorises the Secretary to share information with a range of individuals and other Commonwealth bodies where it is related to the performance of their functions and exercise of their powers, and with State and Territory bodies, but only for certain specific purposes. However, the Secretary may only disclose protected information that is personal information (within the meaning of the Privacy Act 1988 (Privacy Act)) if the Secretary is satisfied that the information will be appropriately protected after the disclosure. This power is necessary as the Secretary may receive a complaint that includes personal information that may need to be referred to another government agency for action. Commonwealth agencies are required to comply with the Privacy Act and most States and Territories have equivalent privacy legislation that applies to their State and government agencies.

The Department will not disclose personal information unless it is necessary and appropriate to do so in the circumstances. It is not anticipated that personal information will need to be disclosed often, and the Department will actively seek to minimise any disclosures of personal information. An example of when it may be necessary to disclose personal information is if a complaint or issue is raised with the Department and it would be most appropriately handed by an alternative body, for example, the National Student Ombudsman. This provision will ensure that the Department can share the complaint with the National Student Ombudsman for action. Where possible, the Department will seek the student's consent before sharing the information with the National Student Ombudsman.

The Secretary's powers to collect, use and further disclose information are reasonable, proportionate and necessary to ensure the Secretary can effectively regulate the Bill and the National Code. Given the serious nature of gender-based violence and the impact that it has on people who experience it, it is critical that the Secretary is able to access relevant information and documents to carry out their functions and powers under the Bill to help ensure the safety of students and staff. Any information collected through these processes will be handled in accordance with the Department's privacy policy (which can be found here:
https://www.education.gov.au/using-site/privacy ) and the Department will also continue to comply with its privacy obligations under the Australian Privacy Principles in Schedule 1 to the Privacy Act. Further, no personal information will be made publicly available by the Department or any other government agency. Such information will only be used internally by the Department and other Commonwealth agencies for the purposes of performing their functions and undertaking their activities.

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 and other legislation.

Right to work and rights in work

Article 6 of the ICESCR states that the right to work should be protected, by providing the worker with just and favourable conditions of work, in particular to safe working conditions, the right to form trade unions and the right to freely choose and accept work. The right to just and favourable conditions of work in article 7 of ICESCR includes elements of safe and healthy working conditions.

Article 14 of CEDAW requires measures to be taken to eliminate discrimination against women in employment in order to ensure, on a basis of equality of men and women, the same rights, in particular the right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.

Gender-based violence can have negative impacts on the mental health, physical health and wellbeing of the people who experience it. For staff, the effects of gender-based violence can result in reduced performance and absenteeism, representing a barrier to career progression and advancement.

The Bill promotes safe working conditions through the power for the Minister to establish the National Code and the subsequent regulation of the Bill and the National Code. As outlined in the section about the right to physical and mental health above, the National Code will ensure that higher education providers' study, work, social and living environments are safe, respectful and inclusive for staff and students, that providers work to prevent, reduce and eliminate gender-based violence to the greatest extent possible and providers effectively respond to gender-based violence in a way that prioritises and protects safety, health and wellbeing.

The Bill provides the Secretary with a range of powers outlined in the section about the right to equality and non-discrimination, and rights to physical and mental health above, which will ensure higher education providers comply with the Bill and the National Code.

Through the regulation of the Bill and the National Code and alongside legislation such as the Sex Discrimination Act 1984, and the Fair Work Act 2009, the Bill supports the rights to work and rights in work by improving the safety of higher education provider's working environments and supporting the safety and wellbeing of staff.

Conclusion

The Bills are compatible with human rights because they promote the protection of human rights and to the extent that they may limit human rights, those limitations are reasonable, necessary and proportionate.