A decision by the ACT Civil and Administrative Tribunal (ACAT) is expected in early 2023 in response to a claim by two ANU students against the ANU.

The claim relates to accommodation costs in 2021 paid by the students to the University during the NSW and ACT COVID-19 lockdowns. Woroni spoke to the students involved and invited the University to comment.

Two ANU students, Kate Aston (she/her) and Sigourney Vallis (she/her), were previously residents of on-campus accommodation offered by the ANU.

The central claim of Aston and Vallis is that their residential occupancy contract was “frustrated”, and that the contract was repudiated by the ANU when it told students outside the ACT to not return to campus, and could not provide a student quarantine facility.

Vallis explained that she became “stuck” in Sydney due to changing lockdown requirements after visiting family in the semester break. She then applied for an exemption to return to the ACT to resume residency and study at ANU in Semester Two, but ACT Health  denied the exemption as it did not consider her a resident.

During this time, Vallis indicated she was in communication with the ANU about quarantining at Davey Lodge although an offer to quarantine at the Lodge never eventuated. When it became clear to Vallis that she would not be able to return to the ACT for an extended time due to the public health directive, she tried to terminate her occupancy agreement. Vallis claimed that she attempted to negotiate this change with the University, but was unsuccessful.

The University’s position appears to be that staff warned students that their agreements could not be ended due to public health directives. However, during cross-examination, an ANU staff member admitted that the ANU had not published this information on the residential contracts portal, StarRez, as they had planned.

They did contend, however, that the agreements did not state that students could terminate due to COVID-19, irrespective of whether this was formally noted on StarRez.

An Observer article, published when the dispute began, noted that:

• The ANU claimed that students would be able to quarantine at Davey lodge after a pause by ACT Health (July 2021), but by October 2021 ACT Health found that Davey Lodge was an “unsuitable quarantine facility.”
• The occupancy rates across on-campus accommodation ranged from 50-90%, with an average occupancy of 70% (October 2021). The  university said this meant that lockdowns and border restrictions affect approximately 650 students.

Both Vallis and Aston communicated with their Residential Hall and with ANU Vice-Chancellor, Brian Schmidt. They allege that the only financial help offered was insufficient to allow them to remain in their occupancy agreements, with one complainant receiving less than a fortnight’s support.

As the ANU would not terminate the agreements, the students felt they were left with little option but to pursue action through ACAT.

Vallis and Aston do not feel that they are the only students with a claim. “…even if we don’t get the outcome we want, they [other students] can still stand up and challenge the University on this issue, and…[we]…hope that students in a similar position do so… [because]… many people have been negatively impacted.”

Even students who did live at the colleges during 2021 raised issues about the “unacceptable” situation, including the working conditions of the Senior Residents.

The COVID-19 lockdowns in 2021 resulted in increasing inequality and increased the number of Australians living on or below the poverty line. A large number of students live below the poverty line and would be among the hardest-hit socioeconomic groups during the pandemic. At the same time, the ANU made a $232 million profit, and in 2023, it has increased student rent.

According to Vallis and Aston, from the start of the lockdown until the end of their contract period they paid over $5000 dollars to the University but could not access their rooms for the majority of that time.

When asked about how they felt going to the ACAT with a claim against the University both Vallis and Aston described the process as, “​​daunting, stressful, time-consuming and a little surreal.” They felt that the University adopted an “aggressive” approach, reminiscent of a “​​David and Goliath situation” in which two community lawyer-represented students were up against the King & Wood Mallesons Lawyers-backed University.

Vallis and Aston claimed that the University threatened to withhold the academic results of the students until they paid their rental debts. Students signing onto the occupancy agreement consent to such disciplinary measures. Both students hoped that their case would help other students, who might be “unsure how they could fight this [situation]”.

An ANU spokesperson stated that,

“ANU didn’t take this matter to the ACT Civil and Administrative Tribunal – the students did.

The ANU occupancy agreements comply with the requirements of the Residential Tenancies Act. 

An occupancy agreement is in place until its date of expiration and according to the Residential Tenancy Act concludes on that date unless agreed between the grantor and the occupant. This is a common and standard feature of any occupancy agreement.

As this matter is ongoing, the University is unable to comment on it further at this point in time.”

Unlike ANU’s on-campus students, students living in non-university rentals were eligible for COVID-19-related support. During 2021, several changes were made to the ACT Residential Tenancies ACT through the COVID-19 Emergency Response Declaration 2021 (No 3) to support tenants impacted by COVID-19. These changes allowed impacted tenants to terminate their fixed term tenancy agreements early. Impacted tenants had to provide evidence of a reduction in household income and/or receipt of a Commonwealth Disaster payment.

Woroni asked the ANU to specify the difference between occupancy and residential contracts. The ANU’s response did not address this question.

Occupancy agreements provide limited legal protection to people in the ACT. As they do not have standard terms, the rights and obligations depend on the terms signed. Grantors (Colleges/Halls) can charge fees that are not typical in residential contracts (such as room change over fees and laundry fees), and the grantor holds the occupant’s bond instead of the bond being lodged with an independent agency (the Office of Rental Bonds).

During the 2022 student election the ACTION! For ANUSA ticket argued that the lack of tenancy rights for students on campus “cause[d] significant problems.” They sought to replace occupancy agreements with tenancy agreements.

Vallis argues that : “Students seeking on-campus accommodation should not have to agree to contracts that render them essentially powerless just so that they can live on campus.”

As Vallis and Aston allege happened to them, the ANU’s occupancy agreements also mixes academic and residential life. The University may withhold results, or use other academic-based measures, when students do not meet the terms of the occupancy agreement. Vallis and Aston’s lawyer argued in court that the occupancy agreements are incredibly biassed in favour of the University.

A number of ANU students attended the ACAT hearing, and it has attracted national media attention. The case of Vallis and Aston is similar to the situation of students globally, pursuing legal action against their universities and residential colleges for allegedly unfair treatment during COVID-19. This includes class action suits against Miami University for the shift to online programs with no reduction in tuition cost. In the United Kingdom students were able to terminate their on-campus residential contracts without any charges. Additionally, students may have reduced “contract freedom” due to Covid-related changes in some agreements.

Woroni expects the ACAT to announce a judgement in the coming month or two. Stay tuned for more.