Terms of Reference

The University wishes to review its policies, procedures and practices for responding to sexual harassment concerns raised against University staff members.

The University has identified the Reviewers as suitable independent parties to deliver this review.

2.1 Purpose

These objectives constitute the scope of this review. Should the Reviewers identify any significant and related issues falling outside this scope they may, after discussion with the Vice-Chancellor, include these issues in their report.

2.2 Objectives

The review will achieve the following objectives:

Objective 1: Complaints Processes

Review the current Staff Complaints Process and Student Complaints Process, including:

• Comparing them to best practice;
• Their suitability for sexual harassment complaints;
• The available complaint-handling pathways; and
• Possible actual or perceived barriers to making or progressing complaints

Review relevant complaints processes used by other New Zealand and Australian universities.

Make recommendations, where appropriate, for changes or additions to current University complaints processes.

Objective 2: Anonymous and Confidential Complaints

Assess the current whistleblowing process as a pathway for raising sexual harassment concerns and whether the current process is fit for purpose in sexual harassment cases and/or sufficiently enables a ‘speak up’ culture amongst staff and students.

Identify other appropriate options and processes for receiving and managing anonymous or confidential complaints, including any limitations that should be clearly communicated to complainants.

Objective 3: External investigation threshold

Recommend criteria for determining when a sexual harassment matter should be referred to an appropriately qualified independent investigator or where external expertise should be engaged to work alongside internal investigators.

Recommend criteria for determining when a sexual harassment complaint should be referred to external authorities including but not limited to Police and regulatory or disciplinary bodies.

Objective 4: Policies, Procedures and Guidance

Review the University’s Addressing Bullying, Harassment and Discrimination policies, procedures and related guidance, and recommend updates to reflect legal developments and evolving understanding of sexual harassment dynamics.

Assess whether the University’s current policies, procedures and guidelines adequately address the risk of retaliation against complainants during and after any investigation. Make any recommendations to improve practice.

Assess whether separate procedures or guidance are needed for sexual harassment complaints, including trauma-informed approaches and safeguards for issues specific to these complaints for both complainants and respondents.

Objective 5: Previous Complaints

Review a de-identified sample of previous (not current/ongoing) sexual harassment complaints dealt with by the University within the last five years, or such other period suggested by the Reviewers, and consider how they were handled and responded to by the University. The Reviewers will determine how to select cases for review and will identify an approach that ensures to the extent possible a range of different cases (e.g. staff groups, areas of the University) are reviewed.

Consider and report on how complainants and respondents were treated by the University.

Objective 6: Prevention and Control Measures

Assess whether the University has appropriate prevention and other control measures in place to deal with any risks arising from sexual harassment*, as measured against relevant examples of best practice guidance, policies and/or practice.

_{*WorkSafe Guidance for Businesses & Workers on Preventing & Responding to Sexual Harassment at Work (October 2018) and Public Service Commission guidance.}

Objective 7: Governance

Review current governance structures for the management and reporting of sexual harassment complaints and make recommendations as to how governance could be strengthened.

Objective 8: Investigation Expertise and Decision-Making

Review the relevant Professional and Academic Staff Disciplinary Procedures and recommend appropriate arrangements for investigating and resolving sexual harassment matters.

Identify the expertise, experience and safeguards required to support good practice, procedural fairness, legal rights, and the health and wellbeing of all parties in relation to sexual harassment and make recommendations as to:

• How identification of the appropriate processes and parties to handle complaints of this nature could be enhanced;
• How the University promotes and maintains a safe and inclusive ‘speak up’ culture; and
• What improvements can be made to the effective management and resolution of sexual harassment complaints and concerns

The review will identify governance, systemic or cultural issues but will not determine the employment, disciplinary or legal liability of any individual. The Reviewers may examine and comment on institutional actions, omissions and decisions insofar as necessary to assess the University’s processes and practices. If, during the course of the review, the Reviewers identify information raising a serious concern that falls outside its scope, they may bring that information confidentially to the attention of the Vice-Chancellor. The Reviewers will not make findings in relation to that matter, and any further consideration will occur through an appropriate separate process with the necessary procedural protections.

• Student conduct issues (i.e. complaints about sexual harassment raised against students of the University).
• Wellbeing and support services for participants in investigations, which are being addressed through separate work 
• Reporting and data collection, with work already in progress to enhance this.
• The review will not reopen past complaints of alleged or upheld sexual harassment at the University or investigate new reports of sexual harassment or complaints against individuals. Those wishing to raise or discuss any new complaints will be advised of the pathways for resolution of such complaints.
• Existing complaints and on-going issues arising from previous issues raised and/or investigations will continue to be investigated/resolved outside of this review.  

Governance for the review is deliberately lean.

Roles, holders and responsibilities

Sponsor: Vice-Chancellor, Professor Nic Smith

All scoping decisions and change requests are approved by the sponsor.

Single point of contact: Human Resources Director, Andrew Phipps

• Access arrangements and primary contact point for the Reviewers on requests for documentation and other requirements during the investigation. 
• The contact will draw in additional support or input or convene stakeholders as required.

Reviewers: Professor Annamarie Jagose, Senior Deputy Vice Chancellor and Provost, University of Sydney, and Fiona McMillan, Partner, Lane Neave  

• Deliver the review in line with these Terms of Reference, and flag any scope, access or timeline risks promptly to the single point of contact. 
• The Reviewers act independently of the University (i.e. they are not engaged to act for the University). 
• The Reviewers retain final editorial control over their report.
  

The Reviewers will interview a set of people from the following groups:

• Experts in the handling of sensitive, sexual harassment complaints;
• Staff members who have acted as delegates managing sexual harassment investigations;
• Human Resources staff members who support investigation and disciplinary processes;
• Any identified complainants (staff, former staff or students) from the prior cases to be reviewed with whom the Reviewers consider it would be helpful to speak (where there is consent for such interviews);
• Identified representatives of University staff networks for the purpose of understanding the experience of different staff groups, including perceptions of barriers to raising complaints; and
• Others as identified by the Reviewers.

The University expects the review to draw on multiple lines of evidence/information rather than interviews alone. As a minimum the approach should include:

• Review of relevant documents, including policies, procedures and guidance documents.
• Benchmarking against comparable universities and relevant good practice.
• Interviews as set out above.

All University staff and students will be advised of the review and will be provided guidance on eligibility to participate and the available steps they can take to participate in a safe and confidential way.

A confidential email address (managed independently of the University) will be established to enable University staff and students to provide information/feedback or raise concerns within the scope of these Terms of Reference to the reviewers.

Those who share their experiences will be given details of avenues of available support, counselling services or other pathways, where relevant. Interviewees will have the opportunity to bring support people to any interviews conducted by the reviewers.

The University agrees to waive, strictly for the sole purpose of this review, any non-disclosure or confidentiality provisions in settlement agreements (or other such arrangements) relating to sexual harassment complaints at the University, to the extent necessary to enable those persons and the University to participate freely and fully in this review.

All personal information collected through the review is subject to an obligation of confidence. Findings/recommendations of the review will not identify any individual or make reference to facts that could reasonably lead to identification of any individual. The University will not tolerate retaliation or disadvantage against any person because they have participated, or sought to participate, in the review.  

The review will produce the following deliverables.

1. Draft report: a complete draft, for validation (but not substantive comment on findings), provided to Vice Chancellor and the Director, Governance, Legal and Risk. Validation is broadly defined as checking factual accuracy, privacy, legal obligations and procedural fairness. All decisions on whether and how any suggested changes are made remain with the Reviewers.
   
   
2. Final report: The final report will be published on the University’s website, subject only to redactions reasonably necessary to protect privacy, legal rights and participant safety. The Reviewers will retain final approval of any redacted version. The University will publish its response to the final report, including an implementation plan and arrangements for monitoring progress.

• Information provided to the reviewers will be confidential to the review and used only for its purposes, subject to any disclosure reasonably required by law, participant safety or procedural fairness. The applicable confidentiality arrangements and their limitations will be explained to participants before information is received.
• Personal information must be handled in accordance with the Privacy Act 2020; interview input should be reported on a non-attributed basis.
• The Reviewers’ access to documents and data will be arranged through the single point of contact or his delegate(s).
• All final deliverables and the underlying findings are the property of the University of Auckland.

The existence of the review, and these terms of reference, will be publicly available on the University’s website and intranet – which will also detail how contact may be made with the Reviewers by any person who may wish to provide information.

• Document: Terms of Reference (ToR)
• Project: Independent External Review of Processes for Management of Sexual Harassment
• Commissioned by: University of Auckland
• To be delivered by: 
  • Professor Annamarie Jagose, Senior Deputy Vice Chancellor and Provost, University of Sydney
  • Fiona McMillan, Partner, Lane Neave (“Reviewers”)
• Sponsor: Vice-Chancellor, Professor Nic Smith 
• Decision-maker on outcomes: Vice-Chancellor, Professor Nic Smith
• Indicative duration: 3-6 months