The right to be heard is universal in student discipline rules, leaving aside for the moment the issue of summary or urgent action. To that end a particular threshold of procedural fairness is satisfied. The real question perhaps is what is the precise nature of the hearing to be afforded.
In Board of Education v Rice,591 Lord Loreburn LC famously said that the duty to ‗fairly listen to both sides‘ is qualified by the principle that the decision-maker is not ‗bound to treat such a question as though it were a trial.‘ This has been reiterated in university cases, such as Kane v Board of Governors of the University of British Columbia.592 In that case, the Canadian Supreme Court heard an appeal from a university professor, and held the decision-maker ‗need not assume the trappings of a court.‘593
The court in that case did go on to hold that the proceedings ought to be heard in a ‗judicial spirit,‘ and a hearing must provide a ‗real and effective opportunity‘ to meet the charges.594
In R v Aston University Senate; ex parte Roffey,595 the right to be heard may be ‗orally or in writing, in person or by [the student‘s] representatives as might be appropriate.‘ The Queensland Supreme Court has taken this dictum to mean an oral hearing is not afforded to a student as of right.596 However, the latter case concerns a disputes over grades, rather than the more serious circumstances of discipline and/or expulsion.
By contrast the Irish High court in Flanagan v University College Dublin597 drew a strict analogy to court and to criminal procedure. The approach of the Irish Court was in effect to codify procedural fairness in student (academic) disciplinary actions, requiring a high standard in the observance of procedural rights such as representation and cross-examination. Flanagan was a case brought by a student found to have committed plagiarism and excluded for a period of time from the university. That Court held598:
The present case is one in which the effect of an adverse decision would have far-reaching consequences for the applicant. Clearly, the charge of plagiarism is a charge of cheating and as such the most serious academic breach of discipline possible. It is also criminal in its nature. In my view, the procedures must approach those of a court hearing. The applicant should have received in writing details of the precise charge being made and the basic facts alleged to constitute the alleged offence. She should equally have been allowed to be represented by someone of her choice, and should have been informed, in sufficient time to enable her to prepare her defence, of such right and of any other rights given to her by the rules governing the
591 (1911) AC 179, 182. 592
(1980) 110 DLR (3d) 311.
593
Kane v Board of Governors of the University of British Columbia (1980) 110 DLR (3rd) 311, 321.
594Kane v Board of Governors of the University of British Columbia (1980) 110 DLR (3d) 311, 324. 595 (1969) 2 QB 538, 554.
596
Ivins v Griffith University (2001) QSC 86, [42].
597 (1988) IR 724.
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procedure or the disciplinary tribunal. At the hearing itself, she should have been able to hear the evidence against her, to challenge that evidence on cross-examination, and to present her own evidence.
While Flanagan sets a high benchmark, it is not in conflict with the general principle that the procedural standards in disciplinary cases are distinguishable, for instance, from matters involving academic judgement. The latter principle is expressed in R v University of Cambridge, ex parte Persaud599 and was supported by Kirby J in Griffith University v Tang.600 It is also been held by the Federal Court that a higher level of procedural protection may be required in disciplinary cases conducted by administrative bodies.601 This approach is consistent with the dictum of the High Court in R v Commonwealth Conciliation and Arbitation Commission; ex parte Angliss Group602 that the nature of the jurisdiction being exercised is part of the circumstances in which fairness is assessed.
In practice at the institutional level a spectrum of approaches operates for serious misconduct. In primary decision-making the general approach may be described as a form of institutional inquiry, held in closed session. Primary decision-making does possess some trial-like qualities (such as charges), prescribed in rules and/or guidelines,603 and in a minority of instances this extends to representation and cross-examination. The trial analogy may not be entirely absent from first instance proceedings. For instance, there may be capacity for a ‗complainant‘ to put their case against the student and be afforded comparable standing before the decision-maker, thus acting as ‗prosecutor.‘604
There are circumstances where a complainant, as well as a student, may be represented.605
In general, university discipline hearings need not operate like trials, and in general they do not. There is a minority tendency in the sector to take a more formal approach. One approach to the construction of appeal procedures, for instance, is to establish some elements of more formal, ‗trial-like‘ proceedings (eg the right to cross-examination, the right to representation). Proceedings may appear more as a dispute inter partes where for instance the university itself becomes a ‗party‘ to the proceeding.606
Added to this is a greater propensity for decision-makers on appellate bodies (in particular presiding officers) to be legally-qualified and, presumably,
599
[2000] EWHC Admin 374, [40]-421].
600 (2005) HCA 7, [166]; 221 CLR 99. 601McCabe v Fitzgerald (1992) 28 ALD 175. 602
(1969) 122 CLR 546, 553.
603
A succinct and arguably model construction of hearing procedure may be found in the University of Queensland Statute No 4 (Student Discipline and Misconduct), s 7.
604 Eg, University of Western Sydney Non-academic Misconduct Policy, s 4, para 76(f): ‗The complainant
and the student will have the opportunity to put their cases to the body that is hearing the matter, and… have equal access to information pertaining to the matter.‘
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deal with questions of law. The exemplary body in this respect is the Student Discipline Appeals Committee at the University of Sydney.607