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Sexual Misconduct Prevention and Response Policy

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Note on language: This policy contains references to sexual misconduct, including sexual assault and sexual harassment. If you feel affected or distressed by this content, support is available. Refer to the Respect Webpage. Reports of sexual misconduct can be made through the Sexual Offences Reporting Portal.

Section 1 - Purpose and Context

(1) This Policy outlines the principles for preventing and responding to incidents of sexual misconduct that occur at, or in relation to, Western Sydney University (University).

(2) Preventing sexual misconduct is a collective responsibility. All individuals engaged in activities reasonably connected with the University are responsible for maintaining a learning and working environment free from sexual misconduct, including sexual harassment and victimisation and are expected to conduct themselves in a manner consistent with this policy.

(3) This Policy applies to:

  1. all current students, including those on leave, and former students, where the behaviour governed by this Policy occurred whilst they were enrolled
  2. all current staff and affiliates of the University

(4) This policy covers incidents occurring in the following contexts:

  1. on University campuses or other facilities used to carry out business or activities by or on behalf of the University, and during University activities whilst on exchange 
  2. in digital communications (including emails and sms) and digital and virtual spaces and environments connected to the University used for learning, teaching, communication, activities and online events and forums
  3. whilst using University information and communication technology (ICT) resources
  4. at premises in which the University conducts its business, including but not limited to where research, study or work integrated learning is undertaken as part of a University activity, including but not limited to placements, internships, fieldwork, or other type of practicum
  5. at events where individuals represent the University
  6. between students, staff, or affiliates of the University, in both personal and professional settings, including University owned, operated or affiliated accommodation.

(5) Reports of sexual misconduct involving a children or individuals under 18 years must be reported to the Director, Complaints Management and Resolution.

(6) Sexual misconduct reported outside the scope of this Policy, such as incidents unconnected to the University, will not be investigated by the University. Support by the University and referrals to community agencies will be offered as appropriate.

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Section 2 - Definitions

(7) For the purposes of this policy, definitions that apply can be found in the Policy DDS Glossary, in addition to the following:

  1. Affected Person means someone subjected to sexual harassment or sexual assault
  2. Affiliate means a person engaged by the University to perform functions on its behalf, including honorary appointees, contractors and Board or Council members. Affiliate also includes University entities
  3. Affiliated Accommodation means any accommodation provider who is managing accommodation on behalf of the University
  4. Affirmative Consent means free, voluntary agreement that must be present when sexual relations occur. Consent is ongoing, can be withdrawn at any time and is communicated through words or actions. Consent must be actively sought and voluntarily given through words or actions. It cannot be presumed on the basis of lack of resistance or protest
  5. Child abuse material means Content depicting minors (persons under 16) in a sexual context; reporting such material is legally required. Reports should be made to the NSW Department of Communities and Justice - Child Protection Helpline
  6. Consent means voluntary agreement to participate in an activity. A person cannot consent if unconscious, impaired, coerced, lacks the capacity to understand, or is underage
  7. Disclosure means informing someone about an incident of sexual misconduct they have either witnessed, become aware of or has happened to them
  8. Formal Report means a formal notification requesting an investigation into sexual misconduct
  9. Notification means either a disclosure or formal report of any sexual misconduct
  10. Sexual Assault means physical contact, or intent of contact, of a sexual nature against a person’s will, using physical force, intimidation or coercion. Further guidance on what constitutes sexual assault can be found on the NSW Department of Communities and Justice - Sexual Violence webpage.
  11. Sexual Harassment means any unwelcome interaction of a sexual nature that makes a person feel offended, humiliated or intimidated, and which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person would be offended, humiliated or intimidated and includes but is not limited to:
    1. inappropriate physical contact, such as unwelcome touching
    2. suggestive jokes or comments
    3. making promises or threats in return for sexual favours
    4. unwanted invitations to go out on a date, especially after prior refusal, or requests for sex
    5. sex based or sexual insults, taunts, teasing or name-calling
    6. staring or leering at a person or at parts of their body
    7. unnecessary familiarity, such as deliberately brushing up against a person
    8. touching or fiddling with a person's clothing such as lifting up skirts, flicking bra straps
    9. sexually explicit conversation, phone calls or letters
    10. intrusive questions or insinuations about a person's private life or body
    11. sexually explicit messages through email, text, messaging, social media posts and other forms of electronic communication
  12. Sexual Misconduct includes sexual assault, sexual harrassment, seual touching, sexual acts, making or distributing sexually explicit photos or videos without consent and conduct involving child abuse material, or unauthorised sharing of explicit images
  13. Victimisation means conduct that intends to cause and/or causes a detriment to a person because they report, plan to report or are involved in a sexual misconduct case.
      Further information relating to sexual harassment is available on the Equity and Diversity web page. 
      Some forms of sexual harrassment also constitute a criminal offence and should be reported to police.
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Section 3 - Policy Statement

(8) The University is committed to providing a safe and inclusive environment for its people (students and staff) and affiliates. Sexual misconduct including sexual harassment and victimisation is unlawful under the Anti-Discrimination Act 1977 (NSW), Crimes Act 1900 (NSW), the Fair Work Act 2009 (Cth) and the Sex Discrimination Act 1984 (Cth). These behaviours are unacceptable at Western Sydney University and inconsistent with the University's Codes of Conduct and commitment to safety. The University has a legal obligation to take positive action and to eliminate this conduct as far as possible.

(9) Sexual misconduct can involve behaviour by/towards any person regardless of their culture, gender or sexuality. It can occur between strangers or those who know each other, including those involved in a consensual intimate relationship.

(10) The University acknowledges that sexual misconduct can stem from underlying drivers, such as gender inequity, power imbalances and abuse of power. Additionally, factors such as age, gender identity, sexual orientation, indigeneity, cultural or linguistic diversity and disability can increase the likelihood of experiencing sexual misconduct. These factors can also influence an individual’s experience of sexual misconduct, their response and the support they require.

(11) The University is committed to the following principles:

  1. preventing sexual misconduct
  2. promoting respectful relationships and behaviour
  3. raising awareness of support and services 
  4. encouraging students, staff and affiliates to seek help and notify the University of any sexual misconduct
  5. responding effectively using a culturally appropriate, person-centred and trauma-informed approach
  6. taking a whole-University approach, to preventing and responding to sexual misconduct, led by senior leadership, to address and prevent sexual misconduct
  7. collecting and reporting data relating to progress and gaps, including prevention initiatives and data relating to disclosures and reports, to enable transparency and accountability.

(12) The University seeks to prevent sexual misconduct and support the wellbeing of its people:

  1. the University will continue to develop and implement a range of prevention strategies that are intended to address the risks to the University community of experiencing sexual misconduct, including for those that may be particularly vulnerable to such risks
  2. the University will continually assess the risk of sexual misconduct within our community and the effectiveness of the control measures in place, in line with the University's Risk Management Framework, as outlined in the Risk Management Policy.  Reports of sexual misconduct will play a crucial role in helping to identify risks, trends and appropriate control measures that address the needs of the University community
  3. The University recognises that it is impossible to completely eliminate the risk of incidents of sexual misconduct in any community. When such incidents are reported, the University's primary concern will be the welfare of those who are impacted.
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Section 4 - How to Respond to an Incident 

(13) The University promotes an approach where disclosures or reports can be made to any staff member and through any means outlined in this Policy. This is called the ‘no wrong door’ approach.  

(14) All staff and affiliates must report any alleged sexual misconduct they become aware of regardless of which reporting avenue is adopted. All staff will also promptly submit a notification to the Sexual Offences Reporting Portal to ensure that the incident is recorded and response made if necessary. If the affected person does not wish for their identity to be known a report can be submitted to the Portal anonymously.

(15) Students are strongly encouraged to notify any incidents of sexual misconduct they experience or become aware of.

(16) Notifications can be made in the following ways:

  1. through the Sexual Offences Reporting Portal (SORP) or anywhere in the University where the reporter feels safe to notify
  2. contact the University’s Campus Safety and Security – refer to the Campus Safety and Security web page
  3. contact the Complaints Resolution Unit via the Complaints and Misconduct Management System, phone or email – refer to the Complaints Resolution Unit web page
  4. contact a HR Business Partner in the Office for People (for staff)
  5. contact the University Student Wellbeing Services – call 1300 668 370 Monday to Friday between 9:00am – 4:30pm (for students)
  6. contact the Director, Badanami Centre for Indigenous Education
  7. contact any staff of the University, University entities or Affiliated Accommodation or any third party the affected person is comfortable reporting to.

(17) Notifications of sexual misconduct submitted to the portal or Complaints Resolution Unit will be reviewed within 72 hours (except during University shutdown periods), and a response provided if contact details are available. 

(18) The primary concern is the welfare and safety of those affected by sexual misconduct and the primary response objective is to facilitate their safety and recovery.

(19) The University will respect the confidentiality and as far as possible, the wishes of the affected individuals except in circumstances where:

  1. there is a risk to the health and safety of the affected individual themselves, or others, and/or
  2. when there is a legal obligation to disclose.

(20) Where the above clause does not apply, information about the notification will only be shared with the knowledge and consent of the affected person and only with those who need to know in order to take necessary actions. In all cases, the University will endeavour to follow the wishes of the affected person, wherever possible, and to provide support including referral to services requested by the affected person.

(21) If a notification to the Sexual Offences Reporting Portal indicates that there may be an ongoing serious risk to any person, the report may be referred to Campus Safety and Security and/or the Police. Reporters are able to report the sexual misconduct to Police through 000 or NSW Sexual Assault Services.

(22) In many instances, sexual misconduct will also constitute a criminal offence.  The University will support individuals who have experienced sexual misconduct in deciding whether they want to report the incident to Police or other regulatory bodies.

Sexual Misconduct can be Reported at Any Time

(23) The University encourages the prompt notification of sexual misconduct to maximise the ability to respond effectively. The University understands that a person within the University community who is affected by serious sexual misconduct may choose to go directly to the Police without first contacting a staff member, or submitting a report to the University.

(24) The University recognises that the length of time between an alleged incident of sexual misconduct and the making of a report may vary, depending upon a range of factors. Referral services will be offered where appropriate, regardless of the date of the incident being reported.

(25) There is no time limitation on making a report. Where a report relates to an incident which occurred more than 12 months prior to the report, the University may not be able to investigate and/or commence disciplinary proceedings, this is because the ability to investigate can diminish over time.

Supports

(26)  There are a range of supports available to students, staff and affiliates of the University who experience, witness or become aware of sexual misconduct. Information on University and community supports are available on the University's Respect Webpage.

(27) University community members can also seek advice and support or raise any concerns with external agencies. These external agencies include the:

  1. Police
  2. Australian Human Rights Commission
  3. Anti-Discrimination NSW
  4. Tertiary Education Quality and Standards Agency
  5. Fair Work Commission
  6. eSafety Commissioner (for online instances of sexual misconduct).
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Section 5 - Investigations

(28) Investigations will only be initiated if the affected person wishes to pursue a formal report, except where the University has a legal duty to investigate or there is a high level of risk to the health and safety of an individual or the University community.

(29) If a Police investigation is underway, the University may pause its own investigation process until advised to resume. This temporary suspension will not prevent any urgent interim measures necessary, to preserve the safety and wellbeing of individuals.

(30) Any retaliation or victimisation (either through threat or action) against individuals for reporting or providing evidence of actual or alleged sexual misconduct will result in disciplinary action and may constitute a criminal offence.

(31) If sexual misconduct or victimisation is confirmed, immediate measures will be implemented to stop the behaviour. Disciplinary measures will be taken under the relevant provisions related to student or staff misconduct and the conduct may be reported to Police.

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Section 6 - Confidentiality and Privacy

(32) Information stored by the University from which an individual’s identity is apparent or can be ascertained is personal information. The collection, storage, use and disclosure and disposal of personal information, incluidng an individuals right to access their information stored by the University is governed by the Privacy and Personal Information Protection Act 1998 (NSW). The University will only permit information related to this Policy to be accessed and used by staff who have a need to access and use the information in order to carry out actions and responsibilities described under this Policy.

(33) Personal information will only be disclosed outside the University where:

  1. the disclosure is necessary to prevent a serious and imminent threat to the life or health of the individual concerned or another person or
  2. the individual to whom the information relates has expressly consented to the University disclosing the information or
  3. the University is lawfully authorised or required to disclose the information, for example because:
    1. the information indicates evidence of a serious indictable offence
    2. a subpoena or warrant issued to the University or
    3. a mandatory reporting requirement arises in regard to children and young persons.
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Section 7 - Guidelines

(34) This Policy supports the University's compliance with the following legislation:

  1. Anti-Discrimination Act 1977 (NSW)
  2. Children and Young Persons (Care and Protection) Act 1998 (NSW)
  3. Crimes Act 1900 (NSW)
  4. Sex Discrimination Act 1984 (Cth)

(35) Related documents are:

  1. Academic Staff Agreement 2022
  2. Acceptable Use of Digital Services Policy
  3. Accident, Injury, Incident, Hazard Reporting and Investigation Policy
  4. Domestic and Family Violence Support Policy
  5. Domestic and Family Violence Support Guidelines
  6. Complaint Management Policy
  7. Critical Incident Guidelines
  8. Death Response Policy (see also Death Response Plan)
  9. Equal Opportunity and Diversity Policy
  10. Equity and Diversity Guidelines on Sexual Harassment Prevention
  11. Gender Equity Policy and Gender Equality Procedures and Guidelines
  12. Health Safety and Wellbeing Policy
  13. Privacy and Personal Information Protection Act 1998 (NSW)
  14. Professional Staff Agreement 2022
  15. Progression Policy
  16. Risk Management Policy
  17. Sexual Misconduct Prevention and Response - Staff Flowchart
  18. Sexual Misconduct Prevention and Response - Student Flowchart
  19. Sexual Harassment Prevention - Guidelines for Managers and Supervisors