New Student Discipline Arrangements Commencing 23 July 2012

Australia and MSA

Glenda BeecherDeputy University Solicitor16 July 2012

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Commencement Statute 4.1 – Student Discipline and its regulations and guidelines will

commence operation 23 July 2012.

On that date:

– Statute 4.1- Discipline is repealed– Student Discipline Policy and Procedures (for single unit

enrolment and OUA students) will be revoked– MSA Student Discipline Policy will cease to have effect– Sunway Student Discipline Policy will cease to have effect– New Student Discipline Guidelines will replace the existing

Discipline Guidelines.

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Transitional Arrangements All matters reported before 23 July 2012 are managed under the

current system. This is:

– Statute 4.1- Discipline for most students in Australia– Student Discipline Policy and Procedures for single unit enrolment

and OUA students in Australia– MSA Student Discipline Policy in South Africa– Sunway Student Discipline Policy in Malaysia.

All matters reported from 23 July 2012 are managed under Statute 4.1 – Student Discipline and its Regulations.

To identify which system to use, identify the date on which the conduct was reported under the statute.

Once reported the relevant statute provides for the decision makers, their powers, the processes that apply, and appeal rights.

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New matters Today I will:

– Give an overview of the lifecycle of a student discipline matter– Identify relevant decision makers – Highlight the ability to appoint a nominee to perform statutory

functions, in order to tailor the student discipline system to suit faculty or campus needs

– Highlight changes made to the operation of the student discipline system

– Point out key documents.

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What is Misconduct? Retained 3 types of misconduct with some refinement of the definitions.

Loosely misconduct is defined as:

– General misconduct: breach of a rule, policy or accepted behavioural norms

– Academic misconduct: seeking an unfair advantage in academic work

– Research misconduct: deviation from accepted standards for undertaking and reporting research.

Not much has changed.

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Who is Covered by the Statute? New clearer definition of who is a ‘student’ under the Statute.

Now covers single unit students and OUA students.

Confirms that students are bound when on a period of deferment, intermission or suspension.

Covers students on or undergoing an exchange program or cross institutional enrolment.

Extends to University related activities such as activities with clubs and affiliated bodies within and outside the country of enrolment.

Brings Sunway and MSA students back under the one system for student discipline.

For mobile students, the course enrolment campus is responsible for the student discipline process.

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Reporting Suspected Misconduct Staff remain under an obligation to report suspected misconduct.

Others continue to be free to report suspected misconduct. A report can still be oral or written.

The person to whom the report is directed has altered.

The default person to whom to report misconduct (subject to nomination of another officer to fulfil these functions) is set out in Table 1 of Regulation 11. It names the ‘responsible officer’ to whom to report any type of misconduct.

General misconduct Student’s faculty Faculty Manager

Academic misconduct Unit faculty’s Associate Dean (E or T)

Research misconduct GRC chair (King)

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Reporting Suspected Misconduct Certain defined areas can still manage student misconduct in their

area.

The ‘senior officer’ of the defined area is the responsible officer with power to deal with general misconduct in their defined area with less penalty options (see Sch 1&2, Regulations):

– IT Executive Director, eSolutions (Tebbet)– Library University Librarian (Harboe-Ree)– Sport Director, Monash Sport (Doulton)– Exams Manager, Examination Branch (Garth)– Grounds Div Director, Facilities and Services

(Davey) Where students from different faculties suspected of act/s of general

misconduct, the report is to Director, Executive Services (Calder).

If report to wrong officer, the recipient will refer it to the correct officer.

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Responsible Officer – action on a report Responsible officer may dismiss the report and take no further action

(eg, if it is trivial or minor, vexatious, or being dealt with informally outside the statute).

Responsible officer may at any time refer the report to a panel for hearing. This does not require providing the student an opportunity to respond as the panel will provide this opportunity.

Responsible officer may investigate the report to determine how to handle it. Broad discretion in how to conduct this investigation.

If investigation leads to a finding to dismiss the report, it is not necessary to give student an opportunity to respond.

Otherwise investigation must provide the student with an opportunity to respond. Can be oral or written. If there is a meeting the student is entitled to be assisted by another person (ie, SRO).

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Responsible Officer – action on a report Where the Manager, Exam Unit acts on a report of possession of

unauthorised materials in an exam and refers suspected cheating to the responsible officer, the responsible officer deals with the referral as a prima facie case of academic misconduct that is proven unless the student had the material:

– unintentionally; or – for a reason other than cheating.

Imposes a new obligation on student to explain why they had the unauthorised material in their possession.

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Responsible Officer – decision Following investigation the responsible officer may:

– Dismiss the report– Find misconduct proven and impose no penalty– Find misconduct proven and impose a penalty listed in Schedule

2 of the Regulations (limits penalties available)– In a defined area the senior officer may deal with it under the

rules of that area (ie, outside the statute)– Refer the report to a panel for a hearing.

If student isaware of the matter, the responsible officer will organise for a written decision and reasons with any penalty imposed to be provided to the student within 7 days after the decision is made.

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New Penalty Considerations In imposing a penalty, each decision maker under the statute is to have

regard to new penalty objectives, being:

– Punishment of the student– Deterrence of future misconduct– Rehabilitation of the student– Protection of the University community or a University precinct.

To do this the decision maker is to consider:

– The nature and severity of the misconduct– The personal circumstances of the student– Any loss, damage or harm cause by the student’s misconduct to

the University or any other person– Any previous findings of misconduct against the student.

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The New Hearing Panels The default person to whom to refer the report (subject to nomination of

another officer to fulfil these functions) is set out in the Regs (3,4&6).

For Gen/Ac misconduct: FDP – Refer to Dean, who appoints and FDP comprising Associate Dean or nominee (chair) [at MSA, a member of the teaching staff], member of faculty teaching staff, student (UG/PG).

For Res misconduct: RDP – Refer to GRC, which appoints RDP comprising member of GRC (chair) [at MSA, can be representative of GRC], member of teaching staff or senior member of academic community, PG HDR student. If also academic misconduct allegation RDP to include member of teaching staff nominated by Faculty dean. [No more preliminary hearings].

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The New Hearing Panels - continued For gen misc with students of multiple faculties: UDP – Refer to

President Academic Board, who appoints from UDP pool member of faculty of law (chair) [at MSA, a member of teaching staff who is legally qualified], member of teaching staff not in faculty of law or who is a former member of GRC, student (UG/PG).

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The New Hearing Panels No panel can include a prohibited person being:

– A person who reported the misconduct– A witness to the misconduct– The responsible officer– A member of the panel that heard the case under appeal– A person with previous involvement in the matter in the report– A person otherwise affected by a reasonable apprehension of

bias. Any objection to a panel member on the ground of a reasonable

apprehension of bias must be lodged in writing within 4 days of getting notice of the panel members, set out grounds, and be sent to the person who set up the panel.

The objection will be decided under a new process to determine these objections set out in the statute.

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Panel Hearings The panel chair will arrange:

– Notice of allegations to be provided to the student– Notice of the hearing date, time and place at least 10 days prior

(unless the student agrees to a lesser period)– Notice of proposed witnesses and the nature of their evidence.

The student must at least 4 days prior to the hearing (or lesser period agreed by the chair) provide names of witnesses the student wishes to question and wishes to bring to the hearing.

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Panel Hearings The panel has a broad discretion in how to conduct the hearing. Must

provide the student the opportunity to respond.

The student can question witness (if gave notice), have a witness attend, produce documents/evidence, give evidence, make oral/written submission.

The student may be assisted by another person (eg, SRO) at the hearing.

A course of misconduct of a student must be heard at the same time.

Related misconduct of more than one student must be heard together, unless:

– unreasonable or impractical; or– a student successfully objects that unfair prejudice to proceed.

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Panel Hearings Where the Manager, Exam Unit acts on a report of possession of

unauthorised materials in an exam and refers suspected cheating to the responsible officer, and the responsible officer refers it to a panel for hearing, the panel deals with the referral as a prima facie case of academic misconduct that is proven unless the student had the material:

– unintentionally; or – for a reason other than cheating.

Imposes a new obligation on student to explain why they had the unauthorised material in their possession.

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Panel Decision The panel can make a decision by majority. Can decide to:

– Dismiss the allegation if not proven– Find misconduct proven and impose not penalty– Find misconduct proven and impose a penalty in Part 7,

Regulations.

In determining a penalty must consider:

– Penalty objectives (discussed earlier)– Penalty considerations (discussed earlier).

The chair will organise for a written decision and reasons with any penalty imposed to be provided to the student within 7 days after the decision is made.

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Expanded Penalty Options All types of misconduct:

– Record of guilt only– Reprimand– Conditional penalty, with the student’s consent– Fine of up to 5 penalty units (1 = $140.84 in 2012/13)– Restitution– Prohibiting entry to a precinct– Suspension– Exclusion.

Academic and research misconduct:

– Disallow the work/research with or without the ability to resubmit– Zero mark for the work/research.

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Appeals – new grounds to appeal A student cannot appeal a finding of misconduct if misconduct was

admitted.

A student can appeal a finding of the responsible officer or, if decided by a panel, the panel on the following grounds:

– Reasonable apprehension of bias of the decision maker (if panel decision and no objection made, can only relate to conduct during the hearing)

– Excessive penalty (not available for fines fixed in Schedule 3)– New evidence of a substantial nature not reasonably available to

the student at the time– Breach of the rules of natural justice with the potential to affect the

outcome– The decision is so illogical or irrational it could not be reasonably

made.

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The New Appeal Panels A student must lodge appeal in writing, specifying the ground/s of

appeal, within 20 working days of the notice of decision, with the person responsible for appeal.

An appeal of a responsible officer decision (subject to nomination of another officer to fulfil these functions) goes to person responsible for convening the panel (Regs 3, 4, 6 and 20.8):

– Gen, or Ac or combination: FDP - Dean – Res or res combination: RDP – GRC– Gen with student diff faculties: UDP – Pres, Academic Board

An appeal of a panel decision goes to President Academic Board who:

– appoints a law chair [at MSA, legally qualified member of staff] to decide if appeal is dismissed as frivolous, vexatious, misconceived or lacking in substance, and if not

– appoints 2 other panel members to hear the appeal (UDP).

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The New Appeal Panels Any objection to a panel member on the ground of a reasonable

apprehension of bias must be lodged in writing within 4 days of getting notice of the panel members, set out grounds, and be sent to the person who set up the panel.

The objection will be decided under a new process to determine these objections set out in the statute.

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Appeal Panels Use the same process as panel hearings when conducting an appeal.

At the appeal the original decision maker (if responsible officer) or its nominee (if panel) has opportunity to explain the decision based on issues it felt important, given their expertise. This does not involve disclosing confidential deliberations.

Original decision maker is only legally represented if the student is legally represented.

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Appeal Panel Decisions The appeal panel can make a decision by majority. It will:

– Decide if appeal ground made out or not– If the appeal ground is made out it will hear the case de novo (ie,

start afresh) unless the appeal is allowed only on the ground of excessive penalty where the appeal is in the strict sense (ie, limited to material before the original decision maker).

The appeal panel can:

– Affirm the decision– Vary the decision– Set aside the decision and substitute its own, but if the appeal is

against a decision of a responsible officer the penalty options available are limited to those available to the responsible officer.

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Appeal Decisions The chair will organise for a written decision and reasons with any

penalty imposed to be provided to the student within 7 days after the decision is made.

The appeal decision is final.

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Other Important Changes There is a new formal process for a responsible officer or panel to

request information relevant to their deliberations under the statute.

There is a new temporary suspension power vested in the VC/MSA PVC/Sunway PVC (or delegate), and vested in the faculty deans:

– After following the process in the statute, a student can be suspended pending a hearing of an allegation of general misconduct where this is reasonably necessary:

• to protect the health or safety of any person or • to protect the University or a University precinct.

The temporary suspension applies unless varied by the VC/PVC or dean, and until a panel decision on the general misconduct allegation.

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Other Important Changes If a student leaves the University before a disciplinary matter is

finalised, the matter can be resumed if they commence a new enrolment at a later time.

In future a central discipline register will be established.

New Student Discipline Guidelines set out significant new material to guide the approach to:

– Investigation– Conducting a hearing– Deliberating on a decision, including points of proof to find

misconduct proven and how to weigh evidence– Writing a decision and reasons for a decision