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: Overlap with general law:
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.