Confidentiality clauses used by Australian universities may be restricting students from seeking support and discouraging them from making complaints, according to the first own motion investigation report released by the National Student Ombudsman.
The report found that confidentiality clauses are commonly applied when a student lodges a complaint or when a complaint is made about them. These provisions can prevent students from speaking to anyone outside the university about their experience, the outcome of a complaint or even the fact that a complaint has been made.
National Student Ombudsman Iain Anderson said students must be able to seek support after raising concerns with their institution.
“Students should have the right to talk to others for support and seek external advice after they have made a complaint to their higher education provider.
Confidentiality obligations should be reasonable, proportionate, and clear. Excessive confidentiality can cause a complainant to feel silenced or disempowered about the experience they had that led them to complain,” he said.
The investigation reviewed practices across the country’s higher education sector and identified 21 universities using confidentiality clauses. Australia has 44 universities in total, meaning just under half of the sector has policies that could impose such requirements.
The report estimates that up to 770,000 students could be subject to confidentiality requirements if they lodge a complaint.
The Ombudsman’s review sought to determine whether these confidentiality measures are being applied in ways that protect student wellbeing.
The investigation found three universities had applied confidentiality requirements improperly: James Cook University, the University of Newcastle and the University of Technology Sydney. The Ombudsman found their approach affected one or more principles of trauma-informed practice, creating risks for student wellbeing and recovery.
Mr Anderson said the use of confidentiality clauses could prevent students from seeking professional or personal support during complaint processes.
“I am concerned that students involved in complaint processes subject to confidentiality clauses could be left unable to discuss the situation with a support person, seek legal advice, contact a health professional for support, or take ownership of how they talk about a traumatic experience including gender-based violence,” he said.
The investigation also examined a case in which a university began misconduct proceedings against a student who had reported sexual harassment and was later alleged to have breached confidentiality.
The Ombudsman has made seven recommendations aimed at higher education providers that apply, or are considering applying, confidentiality requirements in complaint processes.
Among the recommendations are proposals for universities to include clear exceptions within confidentiality policies so students can access support. The report also calls for a defined point at which confidentiality obligations end once a complaint or misconduct process is completed.
The Ombudsman recommends that universities provide plain English explanations of any confidentiality requirements and ensure such provisions apply only to the complaint process rather than to a student’s broader experience.
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