ATEM Workshop Conference: Practical Complaints and Misconduct Handling (Friday 8 th March 2019)

1. ATEM Workshop Conference: Practical Complaints and Misconduct Handling (Friday 8th March 2019) University student misconduct: the role of committees; procedures and ethical standards Adjunct Prof Bill Lane Faculty of Law; QUT

2. University student misconduct • General framework: rules and policies • Categorising student misconduct • Key issues in better decision-making • Following established procedures • Evidence & fact-finding • Natural justice/procedural fairness • Privacy issues • Consistency in decision-making • Recording the decision • Other issues • Standard of proof • Overlap with general law

3. General framework: rules & policies • Univ. misconduct procedures are usually established: • Directly in by-laws or rules made by the governing body (Senate/Council/ Board) and/or • in policies/procedures drawn up by univ. officials or committees exercising delegated powers. • The legal relationship between a student & the university: • Griffith University v Tang (2005) 221 CLR 99

4. Categories of misconduct • Academic misconduct • Plagiarism • ‘contract cheating’ • Cheating in exams • Research misconduct • Plagiarism; 'contract cheating' • Violation of ethics approval requirements • Contravention of industry partner agreement (eg.confidential/commercial) • Non-academic misconduct • Fraudulent docs.; non-authorised IT use; disclosing confid. information • Conduct/behaviour (harass, assault, damage univ. property)

5. Key issues in better decision-making ‘Fairness, transparency, consistency’ “The expectation of a young person to continue with their university education is an important interest even if it may not amount to a legal right…this expectation should not be defeated for reasons related to an allegation of misconduct unless a fair opportunity to be heard is afforded.” – X v University of Western Sydney (No.3) [2013] NSWSC 1329 at [3].

6. Key issues in better decision-making ‘Fairness, transparency, consistency’ • Following established procedures • Evidence & fact-finding • Natural justice/procedural fairness • Privacy issues • Consistency in decision-making • Recording the decision

7. Following established procedures • External challenges to university student misconduct decision-making are generally based on (and confined to) whether the written procedures were correctly followed: • Judicial review: • the ‘merits’ of the decision are not formally amenable to judicial review. Challenges centre on whether written procedures were correctly followed - particularly whether natural justice obligations were complied with. • but note as well that procedures will generally be taken to imply that decisions must be ‘fairly and reasonably based on the evidence’ – so that a decision may be set aside if it was ‘manifestly (legally) unreasonable’, illogical or against the evidence. • Ombudsman complaint investigation: • Usually whether procedures were correctly and fairly applied • However, the Omb. may also consider whether existing procedures themselves are fair and appropriate and report/ request amendment.

8. Evidence & fact-finding • University misconduct committees are not bound by the rules of evidence but should ensure: • that relevant information or factors are identified. • that decisions address relevant facts and are based on logically probative evidence • Before reaching a decision, it may be necessary for a misconduct committee to clarify a matter relating to the specific formal allegation placed before it - • In doing so, care should be taken not to "expand" or add to the formal allegation placed before it. • All issues/arguments raised by the student should be addressed (procedural fairness) • [Decisions which fail to take account of materially relevant factors – or are based on irrelevant factors are generally regarded as invalid in administrative law]

9. Natural justice/procedural fairness • Non-observance of procedural fairness is the most common basis of external challenge to an adverse student misconduct decision. • Administrative decision-making powers capable of detrimentally affecting a person’s rights or interests must be exercised in accordance with recognised principles of procedural fairness. • University misconduct procedures embed certain procedural fairness obligations (eg. prior notice & details of the allegation; right to appear and make representations etc) • But note that in addition: decision-makers will also be expected to observe recognised common law principles of procedural fairness where relevant.

10. Natural justice/procedural fairness Procedural fairness comprises two branches: • (a) The 'hearing rule' (a fair & reasonable opportunity to be heard) • Adequate disclosure & notice of the allegation or case to be met • Adequate opportunity to respond • All issues/arguments raised by the student to be properly addressed • Note: If additional, 'credible, relevant and significant' material arises at any stage during the decision-making process, ensure student has an opportunity to address it before reaching a decision.

11. Natural justice/procedural fairness • (b) The 'bias rule’ – Would an ordinary bystander reasonably conclude that the committee (or committee member) is incapable of bringing an impartial mind to the adjudication? • Types of bias: • Pecuniary bias (a relevant financial interest in the outcome) • Non-pecuniary bias – eg. a pre-existing relevant relationship between the accused student and committee member; a history of past animosity between them; an irrelevant reason is recorded in an adverse decision (eg an expression of personal dislike of the student). Note existence of University conflicts of interest policies.

12. Privacy issues • State (or Territorial) privacy legislation covers ‘public’ universities; 'private’ universities - the federal Privacy Act 1988 (Cth.). • The relevant obligation is to protect “personal information” from disclosure unless disclosure is ‘authorised’ under the legislation. • In student misconduct cases - various types of privacy issues may arise – esp. in dealing with allegations of harassment; assault; deception against another.

13. Consistency in decision-making • Particularly relevant in determining the appropriate penalty. • Misconduct procedures usually set: • a general range of possible penalties • a list of relevant factors to consider in determining penalty • However, the varied types of misconduct (and the varying circumstances within each type) may require further 'fine tuning' in the interests of consistency • Develop written ‘penalty guidelines’ for types of misconduct?

14. Recording a decision: reasons for decision • The written record of an adverse misconduct decision should identify: • the relevant facts upon which the decision was based • the reasons for the decision • Reasons should exhibit a logical & rational process of decision-making: • Avoid unwarranted assumptions or conclusions not supported by the evidence • Especially where credibility is in issue – identify factors & reasons supporting a conclusion reached on credibility

15. Additional issues • Standard of proof: • University misconduct procedures usually state that decision-makers must be ‘reasonably satisfied’ that the allegation is substantiated. • Overlap with general law: • The facts and circumstances of an allegation (eg. assault; forging documents) may indicate the possible contravention of the general law - including criminal law. • However, the issue for the misconduct committee is whether, on the balance of probabilities, the formal allegation is substantiated - having regard to the type of misconduct alleged and the facts on which the allegation is based. • Where appropriate, police or regulatory authorities may be informed.