Committee of Deans Meeting 11-1996

Meeting No. 11/96 of the Committee of Deans will be held at 1.00 pm on Tuesday, 3 September 1996 in the Sir George Lush Room, Ground Floor, University Offices 3a, Clayton Campus.

A G E N D A

Distribution

Vice-Chancellor
Deputy Vice-Chancellors
Pro Vice-Chancellors
Deans
General Manager
Executive Director, Marketing & Communications
Adviser to the Vice-Chancellor
Academic Registrar
Campus Director, Gippsland
Campus Director, Berwick
Special Adviser, Information Systems
Head, Sub-faculty of Nursing
Director, Monash University College of Art and Design
Deputy General Manager
General Manager, Monash International
Directors, Administrative Divisions
Managing Director, Open Learning Agency
University Librarian
Director, Computer Centre

Director, Professional Development Centre
Policy and Legal Counsel
Managers, Administrative Branches
University Solicitor
Faculty Registrars

SWAS 1994, 1995, 1996

a:(Deans96)Agenda\11agda96.doc

Committee of Deans 11/96

3 September 1996

Item 3.1

D105/96

MEMBERS ONLY DOCUMENT, NOT AVAILABLE ELECTRONICALLY Committee of Deans 11/96

3 September 1996

Item 7.1

D106/96

MEMBERS ONLY DOCUMENT, NOT AVAILABLE ELECTRONICALLY Committee of Deans 11/96

3 September 1996

Item 7.2

D107/96

MEMBERS ONLY DOCUMENT, NOT AVAILABLE ELECTRONICALLY Committee of Deans 11/96

3 September 1996

Item 8.1

D108/96

MONASH UNIVERSITY FACULTY OF EDUCATION MEMO TO: Ms Olwen Cornelius

Academic Registrar

FROM: Professor R T White

Dean

DATE: 20 August 1996

SUBJECT: Committee of Deans

Please let the Vice-Chancellor know that I plan to ask him about the attached newspaper report, at the next Committee meeting.

R T White

THE NEWSPAPER ARTICLE REFERRED TO ABOVE, IS NOT AVAILABLE ELECTRONICALLY, HOWEVER, THE ARTICLE: "COURSES MAY CLOSE IN UNIVERSITY SHAKE-UP" MAY BE FOUND IN THE AGE ON SATURDAY 17 AUGUST 1996. Committee of Deans 11/96

3 September 1996

Item 10.1

D109/96

Discipline Statute Working Party 26 August 1996

According to the memorandum from Professor RJ Pargetter to the Deans of Faculties (and others) dated 17 April 1996, a Working Party of the Education Committee was formed to "collate and consider the comments forwarded to them by all other interested parties". The Working Party was then to "prepare a written report on the comments received and submit this report to the . . . Education Committee Meeting on 3 July".

It was the opinion of the Working Party that important issues of policy should be settled and agreed upon before any drafting of legislation occurred. When carefully scrutinising all the comments received it was obvious that some parts of those comments relate to policy issues (and important matters of principle, justification and underlying purpose) whilst other parts related to particular queries on the meaning of words used in the proposed revisions to the statute. It was proposed to extract (as far as possible) the important policy issues from those comments first and then to deal with the particular (and sometimes necessarily pedantic) comments at a later time. The logically anterior stage of the process would be to consider matters of policy.

The Working Party received 23 submissions relating to the proposed revisions, and two relating specifically to the matter of plagiarism. The above-mentioned view that matters of policy necessarily come before the specific drafting of a revised statute was reflected in a number of the submissions to the Working Party.

It should be noted further that on reading the proposed revisions to the statute it became apparent that at times the underlying policy position of this version of the statute was ambiguous whilst at other times an important policy was not addressed at all.

The Working Party identified recurring issues of policy which either needed to be addressed or needed clarification, as indicated in the categories addressed in the following non-exhaustive document. The comments received by the Working Party which could be identified as belonging to any of the following categories have been itemised (some comments are paraphrased) and the number of submissions which made the same or very similar comments are indicated in parentheses. A suggestion for resolution of the matter, approved by the Education Committee is included regarding each issue.

It is the view of Education Committee that the following steps should be taken:

1. A review of all matters of policy listed below, with a view to reaching a firm agreement regarding each matter described, for each section of the paper;

2. The drafting of a revised statute reflecting these policy statements; and

3. Once the revised statute has been adopted, an initial implementation period of two years should be allowed for, with a review of the revised statute and procedures to be undertaken after twelve months (to allow any changes to be made after two years).

The Education Committee agreed that the revised Statute should be approached in four distinct sections: Non-Examination Academic Misconduct, Examination Academic Misconduct, General Misconduct and Research Misconduct. The Committee makes, in this paper, recommendations to the Committee of Deans for referral to the Academic Board regarding the first two sections indicated (Sections A and B), but refers Section C, General Misconduct, to the Committee of Deans for the establishment of a Working Party to consider those issues in a similar format as that used for Sections A and B. The Committee considered that Section D, Research Misconduct, should be referred to the PhD and Scholarships Committee and CADRES for consideration, using as a base the report prepared by the PhD and Scholarships Committee regarding disciplinary matters for PhD and doctoral candidates, and the policies recommended in Section A, Non- Examination Academic Misconduct. These two Committees should then make a report to the Committee of Deans for consideration. Regarding the referral of the section for Research Misconduct, it was agreed that as a general rule degrees offered by Faculties should fall under the system and policies proposed in Section A, but that University awards, like the PhD, would need to be covered separately.

The Committee noted, however, that other Committees or working parties examining the matter of revising the discipline statute should bear in mind that the principles applied to any decisions should be compatible with those used for Sections A and B.

A Non-Examination Academic Misconduct 1. Central Control or Faculty Control

Faculty Comments

A number of submissions made the point that timely resolution of disciplinary matters would be more likely were the matter to be dealt with primarily within the Faculty and with only an extremely limited ability to appeal the decision of the Faculty (or the academic considering the matter, depending on the viewpoint of the submission). However, other submissions which touched on the matter of authority and control of disciplinary matters were very much in favour of continuing the current practice of the final authority resting with a central committee, which considered appeals. This matter is closely linked with that raised in Item Three of this section, 'Grounds of Appeal'.

Specific comments made in the submissions relating to this point included the following:

Central control, including rigorous enforcement of a series of centrally outlined policies, is necessary to ensure equity within and between faculties (2);

Consistency may only be provided if the process refers to a central point(1);

The statute, when redrafted, must be very clear in its delineation between the responsibilities of each of the central and of individual faculty discipline committees (2);

Faculty level Committees should be required to provide written reports of their activities to a central body (1);

The Dean should not be an early point of reference for allegations relating to disciplinary matters, particularly in large, multi-departmental faculties, and this role might be better taken by the Head of Department or a Chief Examiner (3);

There must be a clearly differentiated appeals process, involving a separate committee, at a central level (1);

Central committee involvement in the Discipline process should be limited to appeals against procedural error or against exclusion from a course on the grounds of academic misconduct (1); and

The Dean alone should have the power to discipline a student without the need to call a Faculty Discipline Committee (1).

Issues identified by the Working Party

The primary question raised by the Working Party, and the first which needs resolution, is that of where lies the ultimate responsibility for all disciplinary matters. Although the explanatory comments at the beginning of the draft revisions of the Discipline Statute state that Faculties should be responsible for the discipline of their own students, the revised statute itself seems to adopt a compromise, allowing appeals from a Faculty Discipline Committee (FDC) to a Central Discipline Committee (CDC), albeit only on two (curiously limited) grounds. The statute appears to slide from one level of authority to another, and is not clear at times whether the Discipline Committee to which it refers is the Faculty or the University level committee.

The Working Party also considered that the matter of policy and procedural consistency between Faculties also needs to be addressed, particularly in the matter of multi- departmental (eg Science) vs single department faculties (eg Law).

Suggestion for consideration by the Committee of Deans:

The authority for matters related to the discipline of students lies with the University Council, which may delegate responsibility to the CDC. General guidelines, approved by Academic Board and Council, should be developed regarding faculty processes for considering matters of academic discipline and general discipline. The final body of appeal would be the CDC, which would hear only cases of appeal, all primary hearings being conducted within the faculty or faculties in which a student is enrolled.

Within this framework, increased responsibility for day to day disciplinary matters may be taken by the Faculties. A draft proposal for a tiered structure of action in matters of non-examination academic discipline is attached (Attachment 1) for the consideration of the Committee. Members of the Committee of Deans should note that the preparation of this document was not part of the brief for this working party, but is presented as one possible option.

2. Powers of Individual Staff Members

Faculty Comments

The comments which addressed this matter were varied. Some respondents questioned the wisdom of burdening an individual academic with sole responsibility for disciplinary matters and for imposing an appropriate penalty, while others welcomed the ability they perceived to deal quickly, quietly and efficiently with minor disciplinary infractions. A number of comments concerned the need to develop specific lines of reporting and the difficulties inherent in ensuring that academics adhered to a common standard. Several responses objected to the circular nature of discovering and reporting suspected misconduct, and recommended that the Dean not be involved in the initial process. Further to this, concern was expressed that the act of referring a matter to the Dean prior to any real investigation created a presumption of guilt on the part of the student, and could influence later decisions or make a relatively minor incident much more serious. Several comments also referred to the inherent dangers in allowing two interested parties to be the only witnesses to discussions between an academic and a student, for various reasons, including accuracy of reporting.

Specific comments relating to this matter are as follows:

Action relating to disciplinary matters should initially be taken at the Departmental level, without the need to refer the matter first to the Dean, but the resolution of the matter (or otherwise) must subsequently be reported to the Dean for information (3);

All decision making processes, reports to Deans, and notification of students regarding penalties, further actions or resolutions of disciplinary matters must be made in writing (2);

Faculty guidelines must be developed to provide academics with "rules of thumb" to follow in determining the appropriate action (2);

The powers of individual academic staff should be further considered (1);

If an individual can impose a fine or penalty, what safeguards are there against litigation? (1);

An individual staff member should, after determining whether there is a case for the student to answer, refer the matter to the Chief Examiner of the subject in question, or to a person identified for this purpose by the Dean, for consideration of the matter (2);

Academic staff should not have the authority to impose penalties or sanctions in isolation (1);

There should always be no less than three people present (staff member making the allegation, student and one other) in discussions with a student which are of a serious nature (some refer to the Chief Examiner, others to independent observers, others to the Head of Department) to provide another view of the discussion (1);

Academic staff should not be obliged to deal with matters of "policing" of non- academic misconduct (2);

Reference of all disciplinary matters to the Dean is not always appropriate, particularly for lesser offences (2);

When the student is concurrently enrolled in another faculty it is difficult to know which Dean would have jurisdiction (2);

Members of staff (eg Chief Examiners) should be authorised to deal with more trivial matters (1);

If an individual staff member is to decide an allegation (made by him- or herself), how can this be standardised? (1);

How might the conversations held in interviews between an individual staff member and a student be verified?(3);

A student should have the right to know that a matter is being considered prior to any further involvement by others (1);

An impartial party should determine the penalty, if any (2);

Staff should be able to make "deals" with students regarding discipline matters, in the interests of fairness and efficiency, and a student should be able to either accept the "standard" penalty or appeal the matter further (1); and

An individual staff member should only be permitted to investigate disciplinary matters with all penalty decisions being made at a higher level (1);

Issues identified by the Working Party

The Working Party was concerned by the suggestion that an individual staff member should have the power to decide the issue (eg of guilt or innocence) and queried whether it was more appropriate to have him or her simply decide whether there was a "case to answer". If the latter situation is decided upon the Working Party considered that the staff member should only be permitted to then refer the matter to the next highest level of authority. The compromise suggested in s 8.6 of the draft revisions, that the academic determines the level of seriousness of the alleged offence prior to referring the matter to another authority or determining a penalty, appears inappropriate. Why should an individual staff member have the power to decide first whether a matter is "sufficiently serious" and then, if it is considered not so, to determine a penalty? Further, why should appeals be allowed from some of the penalties for the "non-serious" offence but not others? This last question will be considered more fully under Section Five, 'Sanctions'.

Suggestion for consideration by the Committee of Deans:

An individual staff member should not be permitted to make a decision regarding innocence or guilt in a matter and then to impose an unappealable penalty. The process outlined in Attachment 1 refers to the authority to be granted to an individual staff member, and the staff member should not be involved in developing the penalty for the student. The Committee recognises that efficiency and swift resolution of disciplinary matters is important, but so, too, are the rights of the student in these situations. No decisions should be made without adequate, confidential documentation being made available for consideration by one or two persons with the "broad picture" available to them, in order that several instances of similar offences do not go undetected, while also not causing undue distress to the truly naive offender.

3. Grounds of Appeal

Faculty Comments

The comments received fell into one of two categories: that basically everything should be appealable, including fines and reprimands; or that the only suitable basis for appeal was unfair treatment. A number of the statements which favoured wide appeal considered that the draft amendments concentrated overmuch on administrative convenience and too little on the basic rights of the accused student. Another topic of concern to some respondents was the idea that a preliminary investigation be conducted prior to the hearing of an appeal - and again, some favoured the idea while others were against it.

Specific comments relating to this matter are as follows:

Appeals should be heard (if allowed) at the Central level, and not referred back to Faculties (4);

Fines/reprimands/all penalties must be appealable (6);

Fines should be appealable on the grounds of inability to pay (1);

Students should be able to appeal on the grounds of innocence (1);

Appeal on the grounds of innocence should only be contemplated if the student has not been given a reasonable opportunity to be informed. On the other hand, "reckless indifference" should be regarded as an offence (1);

How can one appeal as innocent, given the treatment has been fair? (1);

Appeals on the grounds of innocence would not be useful (in reduction of workload or increase of efficiency) (1);

If a student cannot argue that he/she has been unfairly treated, he/she should not be able to appeal (1);

Unless there is a deterrent from appeals the appeal process may be seen as an automatic act following a verdict of misconduct (1);

The CDC should treat each appeal as a new hearing and hear all evidence, superseding previous determinations (1);

All penalties suggested are very serious consequences of the decisions of committees and all should be appealable (1);

The bases for appeal should not be limited in such a way that a student is more readily able to appeal through an external judicial review (through the Supreme Court) process than through the internal processes of the University (1);

Grounds for appeal should include: improper constitution of FDC, matters alleged did not, in law, constitute cheating, FDC failed to take account of relevant considerations or had regard for irrelevant considerations, there was no evidence of any probative value in support of the FDC's conclusion that the student was guilty of cheating, and the FDC's decision was totally unreasonable (1);

the basis for appeal should be independently assessed prior to any convening of the CDC (eg by the University Solicitor's Office) (1); and

Committee members should not meet prior to the hearing to conduct a preliminary examination of the appeal to determine whether it should proceed, as this smacks of making the decision before the student has had a chance to speak on the matter (4).

Issues identified by the Working Party

The issue of appeals raised a number of questions for the Working Party. On what grounds should a student be able to appeal to a CDC? Under s 8.13 the two grounds of appeal (namely, if the penalty of temporary or permanent exclusion is excessive or if the actions of the FDC constituted unfair treatment) were felt to be unduly restrictive and unfair. The Working Party considered that appeals should be allowed "on the merits" of each case, and took particular note of the comments of the Dean of the Faculty of Law, who argued for wider grounds for appeal.

Suggestion for consideration by the Committee of Deans:

Although the matter is still open for debate at this stage, the procedure outlined in Attachment 1 allows for appeals of all decisions made in faculties to the CDC, without limitation. The CDC could consider first, in the presence of the student, whether an adequate case for appeal had been made, and then, if agreement was reached regarding this matter, would proceed to hear the appeal. The number of appeals considered, and the grounds for granting an appeal, would then be one of the most important questions considered in the review process conducted after the first twelve months of operation under the new Statute.

4. Legal Representation

Faculty Comments

Overall, the comments, while acknowledging the desire to reduce legalism and maintain equality in representation, were concerned that removing the privilege of all students to choose their own representation in a matter of such seriousness would be an unfortunate step. The balance of the comments referred to the need not to exclude the Student Rights Officer from being able to represent students in Discipline matters.

Specific comments relating to this matter are as follows:

Although the faculty agrees with the idea of practicing solicitors being excluded from representation, the Student Rights Officer, who may have a law qualification, has been employed for the purpose of representing students and must not be prevented from doing so (1);

It would not be helpful to have a student with a law degree represent another student (1);

Students deserve the right to be represented, and this should be notified to them as part of the discipline hearing procedure (1);

We are sympathetic with the principle of reducing legalism, but the question of legally qualified people (staff and students) requires clarification (1);

The Student Rights Officer should be able to represent a student (2);

Does the University have the legal power to deny a student legal representation? If a student's integrity/reputation is being questioned, surely they can seek legal support (1);

The student has the right to have their choice of representation, particularly if the process is supposed to be democratic rather than adversarial (1);

Without allowing the student free choice in representation (including legally qualified people), the imbalance between staff and students is too great (2);

At the very least, students must be entitled to representation by a member of staff/the Student Rights Officer (3);

The statement that the award excludes lawyers from cases made against academic staff is misleading, as the chair of any committee convened under these provisions is a lawyer (1);

If lawyers are to be excluded, why is there a limitation to "practising" barristers or solicitors? (3);

While lawyers may be thought to be a nuisance, they are a nuisance because the obligation to respect people's rights is itself a nuisance (1);

The reference to allowing a student the opportunity to cross-examine is useless if the student is not entitled to be represented properly (1);

Why are students to be permitted to represent other students, but not a staff member? What of the Student Rights Officer? (2);

The exclusion in the draft statute of "practising" barristers and solicitors is probably partly attributable to the need for each student coming before an FDC to have an equal opportunity(ie should not be disadvantaged if cannot afford a barrister or solicitor), and probably also so that the system of conducting the hearing is not unduly delayed by lawyers using technicalities etc to their advantage (1);

Students should have the right to choose their own representative, regardless of whether that person is a practicing legal professional or a student with a law degree (1);

If staff are excluded from representing students at Discipline hearings, what of the Student Rights Officer, who is employed (and therefore a staff member) to act as a representative of students' rights (2); and

Does the University intend to no longer use the Solicitor's Office to present the case for the University (1)?

Issues identified by the Working Party

Should legal representation be denied or granted at both or either FDC and CDC hearings? What sort of representation for both the student and the academic making the allegation is necessary? Would the University Solicitor's Office provide representation on behalf of the University at the Faculty or central levels? If a student is permitted to have a second person of their choice present at any proceedings, should their choice be limited in any way? Would that person be present as a support person (no speaking rights, except possibly translation) or as an advocate (full speaking rights)? When the decision is taken to permit or preclude legal representation would socio-economic factors be taken into account? At what level should legal representation, if any, be permitted? Sections 8.11 and 8.12 (on cross-examination) raise difficult questions on this point, and the memorandum submitted by the Dean of the Faculty of Law makes the point that certain of the rights granted to the student (in this case cross-examination) would be virtually useless were the student not to be granted adequate representation.

Does the exclusion of legal professionals from University proceedings guarantee that the proceedings will be less adversarial? Is that the intention in addition to the stated goal of reducing "bogging down in appeals and technical legal argument"?

Suggestion for consideration by the Committee of Deans:

Although prohibiting the involvement of lawyers from discipline proceedings would possibly reduce the incidence of appeal and streamline proceedings, is the University prepared to abrogate to such an extent the right of a student to be granted as fair a hearing as possible? As indicated in Attachment 1, a suggestion for the resolution of this matter is that the student be permitted differing levels of support based on the different levels of formality and severity of the hearing.

The question of legal representation is more difficult, but the difficulty of defining who precisely would be excluded from possible representation (eg a parent who is also a barrister, a Student Rights Officer who has qualified in law but does not practice, any person studying the law?) is so great that it would seem more equitable to simply allow the student free choice in the matter of representation. In terms of socio-economic equity, perhaps the local legal services could be contacted and the Student Rights Officer be prepared to advise on ways of obtaining legal representation for those who wish it, but cannot afford to employ a barrister or solicitor in their own right.

It should be noted that in discussion at the Education Committee, student members expressed the view, once again, that a person who has been alleged to have breached the Discipline Statute should be permitted to have an advocate (ie with speaking rights) at any formal stage of disciplinary action, including at the departmental or Faculty level. Although the Committee as a whole was not in agreement with this comment, it was agreed that the comment should be referred to the Committee of Deans for information.

5. Sanctions (In particular Fines and Exclusion)

Faculty Comments

Those respondents who commented regarding the imposition of fines were almost universally of the opinion that fines were an ineffective and inappropriate deterrent for academic misconduct. Many of the submissions did not question the imposition of fine for all levels of academic misconduct, possibly because they had assumed that the decision to incorporate fines into the penalty structure had already been debated.

Regarding the matter of exclusion, virtually no submissions commented on this practice, although the Associate Deans (Teaching), meeting in committee, had raised the question of the student excluded from a core subject, who was therefore de facto excluded from the course.

Specific comments relating to this matter are as follows:

On the issue of penalties, the Faculty believes that emphasis should be given to academic penalties rather than fines (9);

Punishments in this area (academic misconduct) should fit crimes (1);

Fines are simply not effective (2);

Fining is appropriate for certain forms of non-academic misconduct (1)(implicit in many submissions);

Fines are "regressive and simply unfair" (1);

Certain "fineable offences" could be dealt with more effectively by using common sense (eg the student who begins to write during the reading period of an examination should be delayed for the same amount of time once the writing time of the examination has commenced) (1);

It appears there is an unrestrained intention by University administration to provide levels of disciplinary action on students, incorporating monetary deprivation (1);

The notion of giving a penalty for cheating should be to teach the student why the act is not allowed at the University and to ensure that the act won't be repeated; fines don't appear to do either (1);

Students from lower socio-economic backgrounds will suffer more than those from higher socio-economic backgrounds under a system which encourages fining (4);

Should fines be part of the discipline structure for academic misconduct, they should be appealable (6);

Costs of notification and collection of fines could well outweigh the fine - what collection procedure would be applied for an unpaid fine? (2);

On-the-spot fining (ie admission of guilt rather than having to have the case heard) is unfair, as the student in an examination venue would be anxious or distressed and therefore unable to give informed consent to the fine (1);

If on-the-spot fining is to be used, the student must be granted a 48 hour period of consideration, and a full briefing regarding their rights under the statute (1);

Reprimands and fines(if reasonable) do allow faculties to manage misfeasance effectively (1);

Why has annulment of result been removed from the list of penalties? (2);

What opportunities should be given to repeat/resubmit a piece of work disallowed because of academic misconduct (1);

If the student cannot pay the penalty fine imposed at the hearing, he/she should state this at the time of the hearing to allow for development of a reasonable time-frame to be prepared for payment (1);

Can a student be excluded for academic misconduct from more than one faculty? (1); and

How can a penalty of exclusion be applied to students studying single subjects and faculty awards? (1) Could use of the phrase "disallow enrolment in any Monash subject" (2) remove any ambiguity?

Issues identified by the Working Party

The issue of penalties and, in particular, on-the-spot fines, needs to be settled (see s 9.1 and s 16.4). Should the sanction of suspension (ie exclusion from the subject for a limited period of time) be preferred to permanent exclusion? The issue of academic rehabilitation should also be addressed. Should a positive finding of cheating lead to a "life sentence"? What if exclusion from a particular subject effectively leads to exclusion from a whole course because, for example, the subject is a core compulsory one?

Suggestion for consideration by the Committee of Deans:

The use of fines to enforce academic discipline is inappropriate, particularly in matters of non-examination discipline infringement. Many respondents considered fines to be a cynical response on the part of the University, and advocated academic penalties for academic misconduct. Fines for matters of non-academic misconduct were implicitly approved, as no real comments were made regarding them. The only circumstance under which a fine for a matter of academic misconduct was considered to be possibly appropriate would be the scenario described in s 9.1 of the draft revisions to the statute, where the student has unauthorised materials in his or her possession in an examination after the time for turning in such items, but has not (yet) used those materials. The Education Committee recommends, however, that no fines be levied for ANY type of academic misconduct, whether arising from an examination or non-examination situation. Fines should be considered acceptable punishment for matters of general misconduct. The matter of the range and type of penalties applicable should be revisited in due course, and may need to be more definitive in nature.

Regarding the matter of rehabilitation from an exclusion due to academic misconduct: the Working Party considered that a period of time should be determined, after which the student ought to be permitted to re-enrol for the degree from which they had previously been excluded. When determining the penalty for an offence, the FDC or CDC ought to be made aware by the person bringing the allegation of the possibility for de facto exclusion, if it is at all likely to occur.

Students who have been excluded from one degree or faculty of the university for academic misconduct should not be permitted to enrol in any degree of the university for the time period determined (as above).

A question also raised regarded the matter of "suspension" or "temporary exclusion", which would appear to be in keeping with the concept of rehabilitation, and which would not require the student to re-apply for the course after they had been deemed to be rehabilitated. This approach is recommended for serious consideration by the Committee of Deans.

6. Sphere of Enforceability of the Statute

Faculty Comments

Specific comments relating to this matter are as follows:

Proposed definition is too wide if it were to include spectators at Monash sporting events (1);

Distance Education students MUST be included, as they enrol for some of the same awards and attempt some of the same assessments as on-campus students (2);

Open Learning students presumably should also be included (1);

Non-Award students are attempting the same subjects as students enrolled in degrees, and therefore must be included (particularly as they may wish to claim credit for the subject at a later stage) (5);

Standardisation of supervision of DE examinations is particularly difficult, as the supervisors of these examinations are often unpaid (1);

Does the proposed definition of University precinct include overseas campuses? What about the library, computer laboratories, etc? Facilities accessed by a modem? (3);

Any student who we examine and give marks to should be bound by University regulations, including single subject students and those studying towards faculty awards (2);

Is there a difficulty with initiating a charge of misconduct where the alleged misconduct has occurred outside the University's premises as opposed to precincts? (1);

A student could be a person "undergoing instruction" (1);

University precinct could include "temporary areas" (eg Caulfield racecourse for examinations use) - I feel that there should be a University security presence if the term and therefore the application can be enforced (1);

Misconduct as defined in the draft could cover a student studying in the student's home (1);

Misconduct - proposed definition could infringe on civil liberties. Is the issue one of whether the students are representing the University? (1);

Statute must also cover PhD and other doctoral candidates, and should be reworded to include research misconduct as an offence against the statute (2);

All students of the University must be covered (2);

Should students other than traditional students be added separately as there may be additional clauses required (eg geographical location of a student may cause necessary differences in hearing procedures)? (1);

Breadth of "misconduct" as a term requires further discussion, and would incorporate a discussion of the term "university precinct" (2);

If Open Learning students are not students of the University then they should not be covered (1);

Many residents of Halls of Residence are not Monash students and should not be covered by this statute (1);

For Open Learning students from another university in a Monash subject, who takes action and under whose rules? (1);

Issues identified by the Working Party

To what groups should the statute apply? Distance education students, overseas students, open learning, PhD's, Faculty Certificate students? Should "cheating" be treated separately from "research misconduct" (ie in the former there is damage to yourself, but in the latter there is damage to the whole University)? What locational jurisdiction should the statute have? For example, misconduct in the car park?

Suggestion for consideration by the Committee of Deans:

The Education Committee considered that the statute should be considered applicable to:

"any person

1. enrolled in a subject offered by Monash University; and/or

2. enrolled in or registered for a course leading to an award offered by Monash University.."

This definition initially included a third part, persons resident on University premises, but the Committee agreed that this third part would be more appropriate if included in Section C, General Misconduct. The definition of persons covered by the provisions of the section regarding General Misconduct, it was considered, should also include persons attending short courses at the University, including ELICOS courses, and VCE students making use of the facilities of the University.

The Education Committee wished the Statute to include research and non-research candidates for degrees, Open Learning and Distance Education students, persons enrolled at Monash Mt Eliza if necessary, persons attempting single subjects, persons registered for Higher Doctorates, and international students away from the primary campuses of the University, or attending a future international campus of the University. It was agreed that the definition above should be submitted to Student Services and the University Solicitor's Office for advice regarding its inclusivity.

It was the opinion of the Education Committee that so long as the application of the Statute was appropriately broad in defining the persons to whom it would apply, there was little need to define locational application, and therefore recommends that there be no attempt to do so. If the University were to try to define locations in which the statute would apply, the Education Committee considered the Statute would become unnecessarily cumbersome and unworkable.

7. Rights of Students

Faculty Comments

Specific comments relating to this matter are as follows:

If markings on a student's body are to be used as proof in an allegation of cheating, the search for such marks must be made in the presence of a person of the same gender as the student (1);

Is this essentially providing the power to strip search? (1);

Students should not be subjected to meeting the Dean and explaining why they are not guilty unless there is sufficient evidence from a hearing to show they are guilty (1);

An independent observer should be present for any investigation, including preliminary ones (1);

Draft statute may be seen as giving an unduly low priority to the rights of students, and undue weight to the interests of administrative convenience and the efficient processing of discipline matters (1);

Proven allegations of cheating may affect the reputation and career of a student for many years into the future (1);

Great care should be taken to preserve the integrity of medical records (1);

Issues identified by the Working Party

What are they and how are they to be recognised? For example, strip searching when suspected of cheating in an examination and invigilators powers. Which students' rights are we referring to? The rights of the student suspected of cheating, or the rights of the rest of the student body who have not cheated and have legitimately obtained their results?

Suggestion for consideration by the Committee of Deans:

When considering the issue of the rights of the student in disciplinary matters, it was felt best to adhere to the common law principle that no persons should be compelled to incriminate themselves nor to assist their accuser to prove the case against them. Within the Statute itself, however, it was considered that it would be best to remain silent on this issue, but to define where necessary the coercive powers which may be available to an authorised officer of the University. It was agreed to recommend that this paragraph be included in the Statute, as a recital or in an introduction.

By virtue of this statement, it is accepted that the rights in question are those of the student being accused of misconduct, although the rights of the students in the greater university community should never be overlooked.

8. Words and Phrases that Require a Clear Definition

Faculty Comments

Specific comments relating to this matter are as follows:

Authorised Materials - no calculators as basic materials, too hard to know their text storage capabilities (4); definition is circular (1); should include calculators if needed for the examination (2); type of calculator should be specified if it is to be authorised (4); add computers (2); notes, books etc taken by law students into examinations should be included (1);

Examinations - define to include other assessments (3); no definition needed (3); Refer to statute 6.1.5 (1);

Misconduct - definition too wide as suggested (4); where is the line drawn between the University maintaining responsibility for itself and calling the police? (4); definition of necessity should be fairly wide (1); adopt Melbourne University statement (1); should include deliberately ignoring safety instructions (1); definition should include actions which compromise quality teaching and learning (1);

Marking on person - why use phrase "if transcribed to paper"? (3); should include "any returnable material (eg electronic examination paper) (2);

Plagiarism - no specific suggestions, but needs definition (2); definition proposed very narrow, include "ideas", and include reference to Intellectual Property statute (2); the extent of the Copyright Act, its enforcement and penalties should be considered (1); include "collusion" and "substitution" (1); should be careful not to give to general a definition (1);

the whole draft is terribly difficult to read and not expressed in plain English (2);

Cheating - should require dishonest intent, rather than only actual use of materials (2); how can one determine cheating has occurred if there are no direct extracts from unauthorised materials? (1); dishonest intent difficult to prove/define (1); should include involvement of "any person" (1); need irrefutable evidence (1); paraphrasing should be excluded (1); what if one person doing part of a group assignment cheats? Are all penalised? (1);

Completed work - why only completed work, partial work should be included, if only to allow intervention (2); use "academic work", not "completed work" (1)

Procedural fairness - what is it and how is it ensured? (6); If the rules are not defined, how can anyone comply with them? (2); principles must be incorporated into the statute (1);

Rules of evidence - which ones? the Conditions of the Evidence Act? (2);

Advantage/advancement - what is the difference? (2); what does "not entitled" mean (1); what about academic disadvantage? (1);

Disseminating information - does not fit with definition of cheating as disseminator does not gain advantage [unless the information disseminated is incorrect? ERB] (1);

Collaboration - how to distinguish permissible and non-permissible collaboration (4); What is it? (2)

Evidence - with current discrimination regulations, should the penalty decision be reached on the basis of one person's word against another? Racial, gender, religious and social bias may be seen as the motivation for a charge (1);

Issues identified by the Working Party

Plain English is needed. Clear definitions are required of "procedural fairness", "unfair treatment", "plagiarism", "cheating" (does it include mens rea, ie dishonest intent?), "completed work", "authorised work", "preliminary examination by a FDC" (see s 8.18) and other phrases.

What criteria are to be used, for example, for "procedural fairness" and what does it mean? Should "Rules of Procedure" be adopted to accompany the statute? What legislative status would it have?

Suggestion for consideration by the Committee of Deans:

As these phrases are all part of the (current) draft Statute, it was considered necessary to discover which words and phrases would require definition under the next revision before spending a great deal of time and effort in defining terms which may not be necessary. For example, the term "procedural fairness" would be unlikely to need definition in the next revision of the Statute because it is unlikely that it would appear.

For ease of comprehension of the Statute, the Education Committee recommends that the list of comments regarding definitions be presented to the University's Policy and Legal Counsel and the University Solicitor's Office at such time as the policy statements agreed upon are presented.

Further, it is recommended that any definitions be presented at the end of the Statute rather than the beginning, as a glossary or dictionary of definitions, rather than as a set of interpretations, as the list of interpretations caused such concern in the reading of the current draft revisions to the Statute, particularly as they were read in isolation and out of context.

9. Other Comments requiring consideration

Faculty Comments

The CDC should have investigative powers (eg when outsiders persistently complete assignments for students, possibly for reward) (1)

Discipline cases are relatively rare (1);

timely, efficient and fair management is needed for discipline cases (1);

most students, when challenged, admit the offence and are willing to accept the standard punishment (1);

Students would rather pay a fine than speak to the Dean (2);

I would like to see the research on the expectation that "most students would prefer [a fine than electing to be heard at FDC]" (1);

Students do not seem to be required to be present at FDC hearing (1);

Clause 8.21 was very difficult to understand (re only penalty applicable is that which a student may not or does not appeal) but makes sense (1);

Procedures must be clearly defined or many varying sets of procedures would be used (2);

Some statement must be made relating to the burden of proof - recommended "the balance of probabilities" civil standard (2); FDC's are not generally competent to deal with technical issues of burden of proof, and the concept is inappropriate to a procedure based on natural justice (3)

In examinations, the manager/supervisor must verbally identify unauthorised materials before the commencement of the examination, request the surrender of such materials, and reiterate the penalty for non-compliance (1); verbal instruction is insufficient (1);

What procedures are to be used for staff-students? And for staff who are not formally enrolled but are working on a thesis (Staff PhD) (1);

Students should have the right to replace members of a disciplinary committee when they feel they will be treated unfairly by an individual member (1);

The draft presented is unsatisfactory and may present more problems than the present statute (2);

If on-the-spot fines are to be used in Halls of Residence, they must be contained in the lease agreement signed by the tenant (2);

Concerns over any interviews conducted included: purpose of questions asked, expertise of interviewer, pressure being brought to bear on student, timing of interview, inequity if not all students are interviewed, will the interview be adversarial (3);

Does a student have an obligation to report another student for copying his/her work? (1);

Should a student who is found to have cheated in a major piece of work (eg honours thesis) be automatically excluded? (1);

A statement should be developed (as in Faculty of Science) for students to sign to confirm that they are familiar with the rules/regulations relevant to plagiarism [cheating, falsification of data] (1);

What opportunities should be given to repeat/resubmit a piece of work disallowed because of academic misconduct (1);

Is an examination manager qualified to determine whether unauthorised material is intended for use in an examination? (1);

Writing prior to the official time should specifically exclude practice of reading and noting permitted in Law examinations (1);

Written reasons for decisions must be made (especially in light of ability of students to appeal decisions) (1);

If a determination cannot be made regarding who copied from whom, then the faculty has not established cheating on the part of anyone (ie both parties must be acquitted of wrongdoing rather than both being found guilty, particularly as the one who was copied from may not be aware of the copying) (1);

Academic staff should be present at examinations to make appropriate decisions at the time of infringement (2);

Who may bring an allegation of cheating (eg another student?) (1)

Specify who should be authorised to conduct a preliminary investigation (2);

Only one or two staff in a faculty should be able to handle all complaints (reduces inconsistency) (1);

All staff of a faculty should be made aware of all cheating incidents (1);

No committee should be able to compel a student or staff member to be questioned (1); and

The composition of the CDC should be clarified (1)

Suggestion for consideration by the Committee of Deans:

The comments listed above range from matters of importance to those markedly more insignificant. It is recommended that any matters which the Committee of Deans considers to require statements of policy be highlighted, and policy decisions made. Again, it is recommended that each of the comments, regardless of whether they involve a policy decision, be passed to the University's Policy and Legal Counsel and the University Solicitor's Office when the body of this paper is submitted to them.

The Education Committee agreed that an issue of real importance was the question of who might allege a cheating incident had occurred (see italicised comment above). The primary question would be regarding whether a student might accuse another student of breaking the Discipline Statute.

Regarding the composition of the CDC and of FDC's, it is recommended that the matter should be incorporated in a proposed set of Rules of Procedure, which would be an annex to the Statute, rather than part of it. These Rules of Procedure are envisaged to be common to all Faculties and parts of the University.

B Examination Academic Misconduct

General Comments

The Education Committee agreed that the numbered items presented above should each be considered regarding the issue of examination cheating. It was agreed that the structure proposed for non-examination academic misconduct could equally be applied, with only minor amendment, to examination misconduct. Accordingly, each heading above is readdressed at this point specifically for examination situations. Additional comments made in a submission made by Student Services are included below.

When referring to Examination Academic Misconduct, it should be made clear that only examination conducted under the auspices of the Office of the General Manager, by the Examinations and Certifications Branch, would be covered by this section. Other examinations, such as those held in a tutorial by the tutor, would be covered by the previous section, Non-Examination Academic Misconduct.

1. Central Control or Faculty Control

Comment:

Where cheating occurs in an examination conducted under the auspices of the General Manager, such disputes would be best resolved by a central discipline committee (1)

Suggestion for consideration by the Committee of Deans:

The Education Committee considered that the University would be best served by changing the procedure currently in use to a tiered structure similar to that used for non- examination academic misconduct. Appendix 2 describes a proposed system for action. The rationale for this decision is much the same as that used in the earlier section: ie that the academic division responsible has a greater understanding of the academic issues at stake, and that the issue may be resolved more effectively at the faculty level. However, as before, it was considered vital to permit an appeals process. The current system allows for the initial and only hearing to be conducted centrally, without room for any appeals process.

2. Powers of Individuals

Comment:

it is suggested that authorised members of the Examinations and Certifications Branch continue to be allowed to issue "on-the-spot" fines (1)

Suggestion for consideration by the Committee of Deans:

An individual would not be permitted to accuse a student of an act of misconduct and subsequently to punish that student without reference to any other staff member, except in the general misconduct circumstance of issuing an "on-the-spot" fine for possession of unused unauthorised materials. Only a person acting in an official capacity would be permitted to raise an allegation against a student or to impose a fine in an examination venue. A person acting in an official capacity would include an authorised invigilator who had been briefed on the procedures used by the Examinations and Certifications Branch.

It should be noted at this point that possession of unused unauthorised materials, a breach of the Discipline Statute for which a warning or a fine may be imposed, was considered an act of GENERAL rather than academic misconduct by the Education Committee. In a case where the authorised officer at an examination suspected that the unauthorised materials had in fact been used, it would become a matter for the department or the FDC to handle.

However, due to the nature of examination misconduct, it is necessary to grant certain coercive rights to the Examination Officer or to authorised officers delegated to perform similar tasks by that person. Such delegation should be made in writing to ensure that there is no confusion regarding the delegation. The powers in question would include allowing the officer:

to confiscate unauthorised materials,

to request that the student remain at the conclusion of the examination for questioning,

to question the student regarding the materials or misconduct in question,

to request that the student empty pockets or bags or to allow an examination (before two witnesses of the same gender) of material written on a part of the student's anatomy, and

to make a statement in writing or in person to a departmental or faculty inquiry.

3. Grounds of Appeal

Suggestion for consideration by the Committee of Deans:

The student would have the right to appeal any decision relating to misconduct in an examination. All decisions taken in a department or faculty would be appealable in the same manner as appeals would be permitted for non-examination academic misconduct.

4. Legal Representation

Suggestion for consideration by the Committee of Deans:

As in non-examination academic misconduct, the rules of representation would vary according to the situation and the level of hearing. A variant on the rules proposed would apply to the initial interview, at which the Student Rights Officer would usually be present, but all other aspects of the representation structure proposed for non- examination academic misconduct would apply.

Again, the objection of the student members of the Education Committee to the proposed structure for representation of a student should be noted (see also Section A, number 4).

5. Sanctions (in particular Fines and Exclusion)

Comment:

The Branch has not issued an "on-the-spot" fine for the last twelve months but wishes to reserve the right to do so in cases involving serious or repeated infringement of the Examination Regulations or for general misconduct (1)

Suggestion for consideration by the Committee of Deans:

The Education Committee considered it best to continue to permit the issuing of "on-the- spot" fines for matters involving the possession of unauthorised materials. This should be considered an issue of general misconduct. All matters of academic misconduct would fall under the provisions already stated for non-examination academic misconduct (ie no fines would be permissible).Matters of general misconduct fall under another section of the Statute (Section C).

It has been noted, however, that the Examinations and Certifications Branch has not issued any "on-the-spot" fines for twelve months, and no immediate plans to begin issuing fines without serious consideration. The current position, that the right is reserved, but would only be exercised where there has been previous infringement of the regulations regarding unauthorised materials, should be maintained.

6. Sphere of Enforceability of the Statute

Suggestion for consideration by the Committee of Deans:

The Education Committee considered that the definition proposed for non-examination academic misconduct should be used.

7. Rights of Students

Suggestion for consideration by the Committee of Deans:

The Education Committee considered that the definition proposed for non-examination academic misconduct should apply, with exceptions relating to the coercive powers of the Examinations Officer or delegated officer as indicated above.

It must be specifically prohibited to strip search a student without that student's express permission.

8. Words and Phrases requiring a Clear Definition

Comments:

Authorised materials - should include pens (other than those with a storage capacity); should exclude calculators as they must be noted on the examination paper; should exclude electronic dictionaries and laptop computers (as these may give users an unfair advantage); should include wallets, passports, purses, keys and personal items such as medication (1)

Suggestion for consideration by the Committee of Deans:

This comment, along with those noted earlier, should be forwarded to the University's Policy and Legal Counsel and the University Solicitor's Office when the body of this paper is submitted to them.

9. Other Comments requiring consideration

Suggestion for consideration by the Committee of Deans:

The comments noted earlier, should be forwarded to the University's Policy and Legal Counsel and the University Solicitor's Office when the body of this paper is submitted to them.

C General Misconduct

The Education Committee considered that the issue of General Misconduct should comprise the third section of the proposed Statute and each heading above should be addressed separately for completeness.

The Education Committee noted that as the present draft Statute was silent on the issue of General Misconduct, the Working Party received very few comments relating to this issue. The Committee determined that the Section should be referred to the Committee of Deans for the establishment of a working party to consider the policy questions in relation to this area. The Education Committee commented, however, that each section should be compatible with the others, and that general principles established in Sections A and B should be used as a basis for further decisions.

D Research Misconduct

The Education Committee considered that this also should become a separate section, although many of the separate headings would use as their basis the statements made under non-examination academic misconduct.

The Education Committee noted that as the present draft Statute did not appear to contemplate this as a separate section of the Statute, it was first necessary to determine whether a separate section for this matter was required and then to consider who should have responsibility for considering any policy questions related to this issue. The Committee recommends that the Committee of Deans refer this matter for the consideration of the PhD and Scholarships Committee and CADRES, with the comment that the report prepared by the PhD and Scholarships Committee regarding disciplinary matters for PhD and doctoral candidates and the policies recommended in Section A, Non- Examination Academic Misconduct should be used as a basis for discussion. These two Committees should then make a report to the Committee of Deans for consideration. Regarding the referral of the section for Research Misconduct, it was also noted by the Education Committee that as a general rule degrees offered by Faculties should fall under the system and policies proposed in Section A, but that University awards, like the PhD, would need to be covered separately.

Working Party

A/Prof S McNicol (Chair)

Ms H Anderson/Mr G Nagtzaam

A/Prof E Barry/Prof A Sohal

Prof J Bowers

A/Prof N Cameron

Ms O Cornelius

Ms ER Brooks (Secretary)

Attachment 1

TIERED SYSTEM PROPOSED FOR USE IN QUESTIONS OF NON-EXAMINATION ACADEMIC DISCIPLINE The proposal outlined below is intended for discussion only. The basic principle behind the proposed early stages is analogous to mediated dispute resolution.

Counselling

An individual academic considers there may be, in work submitted or in progress, concern that the Discipline Statute has been breached (eg plagiarism or cheating). He or she may conduct a private counselling session with the student regarding this matter. The outcome of this informal interview may be one of four things:

1. The student and academic accept that there has been no misconduct;

2. The student and academic accept that there has been an impropriety which does not amount to misconduct as defined by the Statute (ie the action was not deliberate or there was a lack of dishonest intent), may note in writing that the conversation has occurred and agree on any action to be taken (possibly an additional assessment requirement);

3. The student and academic accept that there has been an impropriety which does not amount to misconduct as defined by the Statute (ie the action was not deliberate or there was a lack of dishonest intent), may note in writing that the conversation has occurred but disagree regarding any action to be taken (possibly an additional assessment requirement), at which point academic grievance procedures are commenced; or

4. The academic, after the conversation and further consideration, determines that there is a case to answer, requests that formal procedures be implemented, and advises the student accordingly.

This is not a formal stage of the Discipline process, but is included in this document for information. The counselling mentioned is an integral part of the teaching and learning process, and is a normal part of the role of the teaching staff member. A further academic requirement (eg resubmission of the work in question, or disallowance of the assessment component) would be considered part of the educational process. Should the student disagree with the academic's decision on the matter of an additional requirement, the student should commence the procedures used in matters of academic grievance rather than taking the appeal further through the discipline process. This kind of disagreement would not involve a matter of discipline, as both parties have agreed that there was no academic misconduct.

Department/Initial Disciplinary Process

NB Some faculties may choose to move directly to the next stage, bypassing this stage entirely.

Should the matter be referred to formal procedures, the initial stage of the process requires the Chief Examiner of the subject in question [or Head of Department] and another academic from the same discipline area to receive a brief [verbal or written] statement regarding the matter from both the student and the academic making the allegation. The academic making the allegation may be one of the two academics charged with making the decision regarding the case, although the student would be permitted to veto the composition of the panel. The student would be advised that they are entitled to bring another party to this meeting who would not, at this stage, be an advocate for the student, but would be present to provide emotional support.* This meeting could have three outcomes:

1. All parties accept that there has been no misconduct;

2. The Chief Examiner and other academic, after consideration, determine that the alleged misconduct has occurred, and impose a penalty of an academic nature; and

3. The Chief Examiner and other academic, after consideration, refer the matter to the Faculty Discipline Committee (FDC) on the question of penalty.

In all cases, a brief report of the interview should be prepared and signed by the Chief Examiner and the student. This report should be forwarded to the Dean or nominee for information. The Associate Dean (Teaching) may be an appropriate nominee for such matters.

The student may appeal any decision taken here to the FDC.

Faculty Discipline Committee (FDC)

NB Some Faculties may choose to omit the previous stage and move directly to the FDC.

The matter having been referred to a Faculty Discipline Committee, there are several possible outcomes of this process. The academic who originally brought forward the allegation of misconduct would not be permitted to be a member of the FDC. The student may have another party present at this meeting, who would be permitted to have legal qualifications and to provide advice to the student, but may not act as an advocate on behalf of the student.* The FDC would have two options available to them:

1. The FDC determines there has been no misconduct; or

2. The FDC determines there has been misconduct, and imposes an academic penalty.

In all cases, a brief report of the proceedings should be prepared and signed by the Chair of the FDC and the student. This report should be forwarded to the Dean or nominee for information. The Associate Dean (Teaching) may be an appropriate nominee for such matters.

The student may appeal any decision of the FDC to the CDC. Central Discipline Committee (CDC)

The CDC would hear all appeals from the student regarding the ruling (including the process of the hearing) and/or the penalty. The student may have another person present who would be permitted to have legal qualifications and who may act as an advocate for the student. The CDC would first establish whether there was a case to hear the appeal, and then would consider the appeal by way of conducting a hearing. The CDC is the final level of authority within the University.

The CDC may hear appeals from students relating to:

the ruling of misconduct (including the process followed in the hearing), and may in this case make the following determinations:

1. The appeal is dismissed and the ruling and penalty remain as set by the Faculty; and

2. The appeal is allowed and the ruling is amended such that the student's record shows there has been no misconduct.

the penalty imposed by the FDC, and may in this case make the following determinations:

3. The appeal is denied and the penalty remains that set by the Faculty; and

4. The appeal is allowed and the penalty reduced by the CDC.

A written record of all hearings of appeals must be kept, and a report of each hearing (with no identification of the student in question) should be made to the Academic Board and to Council following the resolution of each appeal.

Oversight of cases

The Dean (or nominee) who has received the reports submitted regarding all matters of academic discipline should consider these reports regularly, with a view to identifying repeated instances of academic misconduct. Should these be identified, the Dean (or nominee) should:

1. In the absence of a new allegation of misconduct, and in light of these repeated instances having been discovered, counsel the student in the presence of a third party (chosen by the student) that academic integrity is a serious matter, and that further transgressions will not be overlooked, and will be treated with severity, and in the full knowledge of previous transgressions; or

2. Immediately refer any new allegations regarding this student (with information regarding the repeated nature of infringements) to the FDC, overturning any determinations made at a lower level in this new allegation.

Intervention by the Dean

In all cases at the departmental or Faculty level, the Dean of the Faculty may override the decision, may amend the process by referring the matter immediately to the next level, or may make a determination that misconduct has occurred and/or with regard to any penalty to be imposed. Any determination that misconduct has occurred and/or with regard to any penalty to be imposed by the Dean at the Faculty level would also be appealable at the CDC, as if it were the decision of the FDC.

* It should be noted that this point has been objected to by student representatives on the Education Committee, who wish to permit full advocacy at all levels of disciplinary action. * It should be noted that this point has been objected to by student representatives on the Education Committee, who wish to permit full advocacy at all levels of disciplinary action. * It should be noted that this point has been objected to by student representatives on the Education Committee, who wish to permit full advocacy at all levels of disciplinary action. Attachment 2

TIERED SYSTEM PROPOSED FOR USE IN QUESTIONS OF EXAMINATION ACADEMIC DISCIPLINE The proposal outlined below is intended for discussion only. The basic principle behind the proposed early stages is analogous to mediated dispute resolution.

Only Examinations conducted under the auspices of the Office of the General Manager should be deemed to be covered by this set of procedures. Examinations conducted by Faculties, departments or individual academics would be covered by the procedures outlined in Attachment 1.

At the Examination Venue

The Examination Officer, or authorised delegate, considers that the Discipline Statute may have been breached. This may take several forms. Examples would include:

1. possession of unauthorised material, which the officer does not suspect has been used;

2. possession of unauthorised material, which the officer suspects has been or is being used during the examination; and/or

3. suspicion that a student or several students are attempting to gain unfair advantage over other students.

In situations relating to the first point, which is considered an issue of general misconduct, he or she may issue a warning regarding such possession, and confiscate the materials, or in circumstances to be further defined, may issue an "on-the-spot" fine of up to $?????? (to be determined when General Misconduct is considered). A written notice should be issued to the student regarding any warning given or any fine imposed.

In situations relating to the second or third point, the Examinations Officer or authorised delegate should adhere to the procedures outlined in the procedural document provided by the Examinations and Certifications Branch. This document describes procedures to be used in an initial interview, recommends questions for the officer, reserves the right of the student to have the Student Rights Officer present for the interview, and provides for the Chief Examiner of the subject or delegate to be present at the interview.

At the conclusion of the interview (which is to be conducted as soon as is practicable after the conclusion of the examination), the Examinations Officer and the Chief Examiner should determine whether there is a case to answer. If both the Examinations Officer and the Chief Examiner determine that there is no case to answer, no further action will be taken, and the student should be so advised in writing.

If a decision is taken by either the Examinations Officer, or the Chief Examiner, or both, that there is a need to proceed, the matter should be referred to the Dean of the Faculty with authority for the course in which the student is enrolled, or (in cases where the student is not attempting a course) the Dean of the Faculty with authority for the subject under examination. The student should be advised of this in writing.

Those persons who were present at the interview should prepare a written submission regarding the incident at the conclusion of the interview if the matter is to proceed to another authority.

Copies of all correspondence should be forwarded to the Dean or the Dean's nominee. The Associate Dean (Teaching) may be an appropriate nominee for such matters.

The Dean or the Dean's nominee would refer the matter to the FDC.

Faculty Discipline Committee (FDC)

The matter having been referred to a Faculty Discipline Committee, there are several possible outcomes of this process. The Examinations Officer or delegate and the Chief Examiner or delegate would each provide a written statement regarding the allegation of misconduct to the FDC. Neither of these parties would be permitted to be a member of the FDC. The student may have another party present at this meeting, who would be permitted to have legal qualifications and to provide advice to the student, but may not act as an advocate on behalf of the student.* The FDC would have two options available to them:

1. The FDC determines there has been no misconduct; or

2. The FDC determines there has been misconduct, and imposes an academic penalty.

In all cases, a brief report of the proceedings should be prepared and signed by the Chair of the FDC and the student. This report should be forwarded to the Dean or nominee for information. The Associate Dean (Teaching) may be an appropriate nominee for such matters.

The student may appeal any decision of the FDC to the CDC. Central Discipline Committee (CDC)

The CDC would hear all appeals from the student regarding the ruling (including the process of the hearings) and/or the penalty. The student may have another person present who would be permitted to have legal qualifications and who may act as an advocate for the student. The CDC would first establish whether there was a case to hear the appeal, and then would consider the appeal by way of conducting a hearing. The CDC is the final level of authority within the University.

The CDC may hear appeals from students relating to:

the ruling of misconduct (including the process followed in the hearings), and may in this case make the following determinations:

1. The appeal is dismissed and the ruling and penalty remain as set by the Faculty; and

2. The appeal is allowed and the ruling is amended such that the student's record shows there has been no misconduct.

the penalty imposed by the FDC, and may in this case make the following determinations:

3. The appeal is denied and the penalty remains that set by the Faculty; and

4. The appeal is allowed and the penalty reduced by the CDC.

A written record of all hearings of appeals must be kept, and a report of each hearing (with no identification of the student in question) should be made to the Academic Board and to Council following the resolution of each appeal.

Oversight of cases

The Dean (or nominee) who has received the reports submitted regarding all matters of academic discipline should consider these reports regularly, with a view to identifying repeated instances of academic misconduct. Should these be identified, the Dean (or nominee) should:

1. In the absence of a new allegation of misconduct, and in light of these repeated instances having been discovered, counsel the student in the presence of a third party (chosen by the student) that academic integrity is a serious matter, and that further transgressions will not be overlooked, and will be treated with severity, and in the full knowledge of previous transgressions; or

2. Immediately refer any new allegations regarding this student (with information regarding the repeated nature of infringements) to the FDC, overturning any determinations made at a lower level in this new allegation.

Intervention by the Dean

In all cases at the Faculty level, the Dean of the Faculty may override the decision, may amend the process by referring the matter immediately to the next level, or may make a determination that misconduct has occurred and/or with regard to any penalty to be imposed. Any determination that misconduct has occurred and/or with regard to any penalty to be imposed by the Dean at the Faculty level would also be appealable at the CDC, as if it were the decision of the FDC.

Committee of Deans 11/96

3 September 1996

Item 10.1

D110/96

TO: Ms E R Brooks, Executive Officer, Education Committee

FROM Professor C R Williams, Dean of Law

DATE: 13th May, 1996

Re: Review of Discipline Statute I am writing in response to Professor Pargetter's memo of 17 April requesting comments on draft 7 of the proposed new Discipline Statute.

In analysing the draft I have borne in mind that it is proposed that the statute be interpreted and applied by non-lawyers, except in the case of my own Faculty. It is therefore particularly important that the Statute be easily comprehensible.

My comments relate both to matters of substance and to minor technical matters.

With regard to matters of substance, in my view there is a continuing defect running throughout the statute. Essentially, in my opinion, the statute may be seen as giving an unduly low priority to the rights of students, and undue weight to the interests of administrative convenience and the efficient processing of discipline matters. I accept, of course, the desirability of providing procedures that are convenient and expeditious. It must always be remembered, however, that the issues involved are important. Proven allegations of cheating may affect the reputation and career of a student for many years into the future. In my view it is important that principles of procedural fairness are appropriately incorporated in the statute.

My comments follow through the various parts of the draft.

PART I

1.1 Interpretations

"academic work" - this definition would be clearer if the last half, from "for the purposes of assessing...", were removed. I think the concept of assessing the performance of a student in relation to that work is somewhat circular. The definition might be improved by substituting something like "as part of the total assessment in a subject or course".

"assessment" - this definition is particularly vague.

"authorised material" - this definition does not, on its face, include the books, notes, and other written materials which law students are commonly allowed to take into an exam.

"cheating" - My major concern is that the definition requires no dishonest intent. I would not support the use of a word such as "cheating", which carries so much stigma, in relation to a strict liability offence.

As to the components of the definition:

(i) "an academic advantage or advancement to which that student is not entitled" - what does this mean ? If, in the case of a law student, a student asks their lawyer parent for advice with an assignment, is that an academic advantage to which the student is not entitled ?

(ii) (c) "writing prior to the official time" - does this permit the common Law School custom of allowing reading and noting ?

(d) This sub-paragraph does not grammatically follow from "a student's". As to the content of paragraph (d), yes, it is ambiguous, particularly as the definition of unauthorised material makes no reference to paper.

(e) From here on the statute uses the term "completed work" in a number of places. I believe this term is ambiguous and unnecessary and it would be much clearer if the phrase "academic work" were used throughout. Although in practice it is probably unlikely that any "cheating" by a student would be discovered before he or she had completed the work and submitted it, there is no logical reason for so many of the provisions of the statute to depend upon the concept of "completed" work.

(g) I believe that to include "paraphrasing" in a definition of cheating is going too far. The other difficulties with this sub-paragraph are; first, that it refers to a student doing "one or more" of the following and there are only two alternative courses; secondly, what is the distinction between giving a "reference" and an "appropriate acknowledgment" ?

(h)This is unduly wide. What is "collaborating" ? How is a student to know if "the collaboration is not permitted"?

(i) This should be re-drafted to read "committing an act of plagiarism, other than an act referred to in paragraph (e) or (g)".

(j) No, it does not mean anything and should be deleted.

(k) What does "contributing to" mean ? Again ambiguous and unduly wide.

(l) Should refer to "academic work".

(m) After "an application for special consideration" it should read "or an application for an extension of the time".

"misconduct" - once again this is too wide. It refers to a student doing anything "incidental to an activity which is part of the student's academic work". This could cover studying in the student's home.

"student" - there is a real policy issue here in whether the statute should apply to the categories of students listed. I certainly believe it should apply to non-award students.

"unauthorised material" - this is clearly not a definition.

"unfair treatment" - this definition raises my concern about the application of the statute by Committees of non-lawyers. Somewhere the statute, if it wants to use this criterion, should set out what it regards as the rules of procedural fairness.

PART III

8.2 The reference to "other person employed by the University" is far too wide. I don't see why this section cannot be limited to the examination manager and members of the teaching staff. Furthermore, I suggest that the word "considers" should be qualified by "on reasonable grounds".

8.3 I presume that some other document will set out who is authorised by the University to conduct a preliminary investigation.

8.5 The draft at this point has started to use "must" and "shall" inconsistently. It should decide whether it is going to use "must" all the way through or "shall" all the way through.

8.6 This is structured very poorly. The opening paragraph should be re-written so as to make it clear that the process of determining which category of matter the incident constitutes is a necessary preliminary step. As to the policy contained in section 8.6, I do not object to this as I think it is sensible to give members of the teaching staff (possibly limited to chief examiners), the power to deal with trivial matters or "innocent plagiarism", which occurs quite frequently in first year. I think the powers available to the teacher should include requiring the work to be re-submitted. The obligation to advise the student and the Dean should be to advise in writing.

8.7 The right of appeal against alleged unfair treatment proposed in bold type should be included and the necessary amendments should be made to the existing working of 8.7.

In my view students should have the right to appeal against a reprimand or fine. While the penalties may not be substantial, the harm to reputation may be significant.

8.10.2 I can see no reason why a Faculty Discipline Committee should be obliged to include the Dean or nominee from the other faculty. There is every reason why the Committee should include at least one member from outside the relevant faculty but it seems to me unduly restrictive to require that it be from the other faculty in which the student is currently enrolled.

8.11.1 There must be no possibility of limiting the notice given to the student to anything like a mere two days. I would have thought that 14 days should be the minimum.

8.11.3 I disagree with the proposed prohibition on representation of a student by anyone other than another student, particularly when the University may be represented from the University Solicitor's office. Even if this is not so, and faculties adopt a policy of having a member of the teaching staff as their "representative", the imbalance between staff and student is too great. At the very least, the student must be entitled to representation by a member of staff, and this would include someone from the Legal Service. My preference would be not to limit representation in any way. In reality, it will only be in rare cases that a student will want to bring in a practising lawyer from outside, but they should be allowed to do so where they regard the matter as serious enough to justify it. While lawyers may be thought to be a nuisance, they are a nuisance because the obligation to respect peoples' rights is itself a nuisance.

The statement in the preliminary notes accompanying the draft statute that the exclusion of lawyers is in conformity with the award is misleading. Under award procedures the committee is chaired by an independent lawyer. Further, in the one case brought against a Monash academic under the award provisions the University resiled from its initial position and permitted the staff member to be legally represented.

The reference to "a practising solicitor or barrister" is, in any event, inadequate. If lawyers are, contrary to my own view, to be excluded why should a lawyer who is not currently practising be permitted to act?

8.11.5(a) This assumes that the preliminary fine imposed has already been paid. This seems to be inconsistent with the statement in paragraph 8.20 that the imposition of a penalty is stayed until a final decision has been reached.

8.12 The Faculty Discipline Committee is not required to furnish written reasons for decisions. I would hope this is an oversight. There is judicial authority for the proposition that where there is a right to appeal against a decision, the decision maker is under a duty to furnish reasons for the decision on request.

8.12(b) The reference to allowing the student the opportunity to cross-examine is useless if the student is not entitled to be represented properly.

Why is cross-examination limited to material "prejudicial" to the student's case ? Why is cross-examination not available in respect of statements which are simply false or misleading ?

8.13 I do not agree with the intent to limit the grounds of appeal in this way. It is odd that the grounds on which a student could seek judicial review in the Supreme Court in the exercise of its supervisory jurisdiction are wider than those on which the student could appeal to the Discipline Committee. Presumably it is not our intention to encourage students to go to the Supreme Court rather than the University Discipline Committee.

Grounds for judicial review of a decision adverse to a student could include -

a) The Faculty Discipline Committee lacked jurisdiction because it was improperly constituted

b) The matters alleged against the student could not, in law, constitute cheating

c) The Faculty Discipline Committee failed to take account of relevant considerations or had regard to irrelevant considerations

d) There was no evidence of any probative value in support of the Faculty Discipline Committee's conclusion that the student was guilty of cheating

e) The Faculty Discipline Committee's decision was totally unreasonable

I would suggest that 8.1.3 be amended to include these five grounds of appeal in addition to the two already there.

8.15 As to the action to be taken if the University Committee finds that the faculty was guilty of unfair treatment, I would have thought the appropriate course was to acquit the student and reprimand the faculty. This might serve as a reminder to faculties that they have to take their obligation to act fairly very seriously.

8.18 The last two lines on page 14 appear meaningless. I am opposed to the idea that the Committee members meet prior to the hearing to conduct a "preliminary examination" - it smacks too much of deciding a matter in advance without giving the student the opportunity to be heard.

9.1 I do not like the idea of the examination manager having the power to impose an on-the-spot fine. A student in that situation would be extremely anxious and distressed and I do not believe that any "consent" he or she gave would be an informed one. At the very least, the student should be given 48 hours to notify Examinations Branch whether he or she consents to an on-the-spot fine and, before making this election should be given a summary of rights under the statute.

10 I am opposed to this provision. If the faculty cannot determine who copied from whom, then the faculty has not established cheating on the part of anyone. To effectively deem both to be guilty is obviously unjust. This provision could result in a student who inadvertently left his notes in the library where they were copied by another student, being found guilty of cheating without the faculty having to lead any evidence whatsoever of wrongdoing.

11.1 The proposal that every year each faculty provide a report to enable us all to "use our best endeavours to achieve a consistency of approach" may be a pious hope but it is unlikely to operate in reality. The faculty reports would have to be impossibly detailed to provide any assistance to other faculties.

By way of general information, I enclose references to cases and articles on plagiarism and cheating.

C R Williams

Dean of Law

cc: Professor R Pargetter

Ms E Wilson

Professor R G Fox

Associate Professor J Goldsworthy

Associate Professor S McNicol

Professor E M Campbell

Mr J Duns

Mrs J Tooher

Ms J Lipton

crw:jet

disstat.14/5/96

ARTICLES ON PLAGIARISM RD Maudsley, 'Plagiarism problems in Higher Education' (1986) 13 Jo. of College and University Law 65-92

P Crennan, 'Plagiarism and Legal Practice' (1993) 67 LIJ 128-30

PW Thomley, 'In Search of a Plagiarism Policy' (1989) 16 Northern Kentucky LJ 501-19 (Law Library does not have.)

P Circus, 'Plagiarism in Advertising' (1987) 8 Business LR (UK) No. 2 258

KH Fox, 'Due Process and Student Academic Misconduct' (1988) 25 American Business LJ 671- 700 (at 671-2)

L Stearns, 'Copy wrong: Plagiarism, Process, Property and the Law' (1992) 80 Calif. LR 513-53 (March) - Law Library has not received as of 15/3/93

RD Bills, 'Plagiarism in Law School: Close Resemblance of the Worst Kind?' (1990) 31 Santa Clara Law Review 103-146 (pp 140-6 contain a bibiligraphy) - Enid Campbell has a photocopy of this

D Papay-Carder, 'Plagiarism in Legal Scholarship' (1983) 15 Toledo LR 233-69

G Maslen, 'Plague of Plagiarism' Campus Rev., March 11-17, 1993, pp 12-13

G Maslen, 'Preventing Plagiarism' Campus Rev., March 18-24, 1993, p.12

On use of academics' work, without acknowlegments, see P Birks in [1992] Public Law at p.591 and his article in (1994) 14 Legal Studies 156

'The case of Pickering' (1992) 66 Law Institute Jo. 616.

EC:CP PLA94-02.DOC/MISC#16

27 October, 1994

SOME CASES ON PLAGIARISM Re La Trobe University; Ex p. Wild [1987] VR 447

Flanagan v. University College, Dublin [1988] Irish Reports 274, 731

Napolitano v. Princeton University Trustees 483 A 2d 263 (1982)

Re Lamberis 443 NE 2d 459 (1982)

EC:CP PLA94-01.DOC/MISC#16

27 October, 1994

Committee of Deans 11/96

3 September 1996

Item 10.2

D111/96

Monash University ASSOCIATE DEANS (TEACHING) Report to Committee of Deans The Associate Deans (Teaching) met on 30 July 1996. R E C O M M E N D A T I O N S 1. Receipt of Report

Recommendation:

That the Committee of Deans receive and note the Report of the meeting of the Associate Deans (Teaching) held on 30 July 1996.

2. Role of the Associate Deans (Teaching) in Staff Development

Recommendation:

That the Committee of Deans approve the following statement for recommendation to the Academic Board and for subsequent amendment of Section 1.3.4 of the Education Policy:

"Although Associate Deans (Teaching) might be appropriately used in the process of induction of new staff, and to a certain extent in the development of staff mentoring processes in the Faculty, the role of "staff development" would be better taken by the Dean of the Faculty or the Head of the relevant department."

3. Subject Evaluation and Review

The Associate Deans (Teaching) considered the recurring matter of the best method to be used to evaluate the teaching and learning process, and in particular the process used to evaluate individual subjects at the conclusion of each teaching period. Members agreed that subject evaluations should contribute to improvement in the teaching and learning experience and provide quality feedback to academics, and noted that in their current incarnation, the evaluations were not useful and were, in fact, not being properly administered. A comment made by a member with which all agreed was that it was more important to consider the way the questions on an evaluation and their answers were used rather than simply saying that the questions should be better. It was agreed that the evaluation process should also provide for a reflective response from the person responsible for the subject which had been evaluated.

It was agreed that the questionnaire to be used in subject evaluation should be developed from a perspective of core concerns and issues. The PDC will consult individually with Associate Deans (Teaching) and Deans regarding the best approach to be taken. Associate Deans (Teaching) noted the need to focus questions on obtaining positive response in order to bring out examples of best practice rather than simply a litany of complaint, and the need to focus on 'development' of subjects rather than their evaluation.

Members noted that the PDC would provide another paper on the topic within six to eight weeks, encompassing the discussion conducted at the meeting of Associate Deans (Teaching) and the responses made individually by each faculty. The idea that the Education Committee and the Associate Deans (Teaching) should focus more on a supportive role rather than the role of 'the enforcer' was greeted with acclaim by the members.

Recommendation:

That the Committee of Deans consider the following proposed approach to the process of evaluation of subjects:

1. Faculties conduct centrally controlled evaluations only for first year and core subjects, using a new set of questions which target core concerns (to be developed by the PDC in conjunction with Deans and Associate Deans (Teaching));

2. Faculties evaluate subjects other than those indicated above using an internal process to be developed and reported by Deans to the Associate Deans (Teaching);

3. Every subject should be reviewed with an eye to redeveloping the subject every few years (at least once every five years), and that reports (including 'case studies') of these reviews could then be assessed by a panel of three independent Associate Deans (Teaching) each year. The Associate Deans could then prepare a very brief (one to two page) document on each Faculty's review process for central information (probably presented through the Education Committee) pointing out the achievements of the Faculty in that year.

**************************************** P R O C E E D I N G S 4. Receipt of Proceedings

Recommendation:

That the Committee of Deans note the Proceedings of the meeting of the Associate Deans (Teaching) held on 30 July 1996.

5. Course and Subject Approvals Process - Education Committee

At the Meeting of the Education Committee held on 3 July a number of quite specific concerns were raised by the Evaluation Panels in the course of the examination of course and subject proposals. The Education Committee referred this list to the Associate Deans (Teaching) for consideration. The Associate Deans (Teaching) agreed that the matter would be best considered by a small group, who could meet in the near future to discuss each of the points raised and the possibility of better utilising the current database. This group would include Professor RJ Pargetter, Mrs A McMillan, Ms ER Brooks and representatives from Student Administration. Subsequent to the meeting, Mr P Irvine was added to the group.

However, the point was made at the meeting that the Education Committee and Associate Deans (Teaching) needed to be careful to balance the need to ensure comparability with the recognition that Faculties usually considered many of the issues raised very carefully in their own approvals process. Members agreed that, in general, it was best to avoid making prescriptive statements about assessment requirements in terms of the credit point system.

Members noted that a training and information session regarding the use of the alias function has been scheduled for 2:30 pm on 11 September in the Sir George Lush Room.

Committee of Deans 11/96

3 September 1996

Item 10.3

D112/96

DISCIPLINARY RESPONSIBILITIES The Education Committee has again been confronted by issues reflecting a lack of coherent academic policy within the University.

The issues are:

¨ Does a Department/School/Unit have academic responsibilities for a particular academic area?

¨ Does that unit at least have the responsibility to determine levels and standards for subjects in that disciplinary area?

¨ Should there be an opportunity to revisit teaching arrangements in light of the determination of the above issues?

Because of the different histories and past practices of sections of the University, there is no consistent practice and precedents for every approach abound. In other cases, past decisions may now need to be revisited. Some examples are:

* discipline units available in BEd courses: taught by Education at Peninsula, but by departments or schools at Gippsland;

* first year level econometrics units taught at 3rd year level in computing awards by computing faculty staff who even use the same textbook;

* commercial law subjects which are not the responsibility of the Law faculty; and

* an incredible mixture of arrangements for areas like psychology, statistics and mathematics.

The problems do not reflect a lack of good will, or a lack of a willingness to discuss or consult. But there are precedents in every direction, and past practice is so diverse as to make it difficult to approach new subjects coherently.

The Education Committee believes that a policy direction needs to be determined by the Committee of Deans and the Academic Board.

In requesting this direction, it is noted that

1. any direction would take time to implement because of the variation of practice and the staffing and financial implications;

2. the Education Committee would develop draft policy and procedures once a general direction has been determined; and

3. there will always be borderline cases which will remain and can only be controlled by consultation and tolerance (eg molecular biology, feminist studies, cultural studies, the environment)

Robert Pargetter

Deputy Vice-Chancellor