As noted, internal recourse from primary decisions is universal in the universities investigated. Two questions arise from this fact. First, are existing appeal mechanisms capable of ‗curing‘ failures to accord procedural fairness at first instance? Second, how accessible are appeal rights?
Denial of procedural fairness is a ground for appeal from an original decision in all the investigated cases, although the precise wording may vary.680 At James Cook University, indeed, it is the sole ground of appeal. From the construction of the rules, it is expressly stated or reasonable to discern that a form of re-hearing de novo is available to students in 8 of the 17 institutions. Where a rehearing de novo is available, it is possible that the appeal may ‗cure‘ a procedural defect of the primary decision.681 In situations where less than a full de novo hearing operates it will be the case that an appellant is entitled to a fair hearing at both levels of decision-making.682 Therefore, slightly fewer than half of the universities investigated in this study have established adjudicative machinery capable of ‗curing‘ procedural unfairness by original decision-makers. It is arguable that failure to provide this adjudicative procedure, and indeed appeal procedures ‗fuller or enlarged‘ from those employed at first instance, reflects an ambivalence on the part of university rule-makers to mechanisms that would allow to challenge to internal decisions affecting students.
Having said this, there are a number of examples where appeal procedures are ‗fuller or enlarged‘ over those of the original hearing. This includes rights to cross-examination and representation. Decision-makers on appeal are apt to be senior officers of the university and/or required to have legal qualifications. Greater ‗judicialisation‘ of procedure on appeal provides an element of protection from error in primary decision-making.
680 Eg Deakin University‘s Discipline Regulation provides appeal is available for ‗misapplication of
procedures,‘ which presumably implies denial of procedural fairness (Discipline Committees are expressly required to observe the rules of natural justice). Swinburne University uses the term ‗procedural irregularity‘ as a ground of appeal. Monash University uses the term ‗significant procedural irregularity.‘
681Calvin v Carr (1979) 1 NSWLR 1; Forbes Justice in Tribunals, [14.7]-[14.12]: ‗A re-hearing de novo
is more in the nature of a re-trial than a conventional appeal.‘ He cites Allesch v Maunz (2000) 203 CLR 172, 180 in support of the distinction between a re-hearing de novo and an appeal properly speaking (dealing with an error of law).
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The requirement to observe procedural fairness in domestic tribunals does not compel an internal right of appeal, although in practice internal appellate bodies are common.683 Whether or not such a body exists, and whatever its precise powers and functions, both the appellate and first-instance decision-makers will be required to proceed fairly,684 and if there is no internal recourse on this question an affected person may turn to the courts for judicial review. In the case of statutory tribunals, systems of administrative appeal are available. Historically, of course, in the case of university tribunals, recourse may be had to the Visitor. But that avenue was been largely removed. In Australia, as distinct from the UK, no alternative body of external or statutory appeal or merits review has been established.685
Whether or not the rules provide for a re-hearing on appeal, there is an initial question of access to the appeal procedure. Most disciplinary rules provide for appeal rights on specified grounds without any further limitation or discretion upon an appellate body or other decision-maker to hear an appeal. The appellate body would, presumably, adjudicate on any dispute over whether a student meets the ground or grounds of appeal. This task is expressly provided for in the University of Tasmania rules, where the Discipline Appeals Committee must determine the preliminary question as to whether an application ‗discloses a reasonable basis‘ of appeal.686 Appeal procedures at Curtin University are the exception to this rule. At that institution, appeal from a decision imposed by various University officers687 may only be made by leave of the University Registrar to a Board of Discipline (acting as the appellate body). A decision on an application for appeal made by the Registrar is final, and, in relation to appeal procedures operable at other universities, the exercise of an extraordinary and unregulated discretion over the availability to students of appeal rights.
In general, access to appeal rights is straightforward. Although not strictly required for fair procedure to be observed, the availability of appeal mechanisms is a common feature of student discipline rules. It is a valuable protection against injustices that may be perpetrated in the course of the administration of discipline. Arguably, this is an important feature of a jurisdiction from which review on the merits is absent or, at best, uncertain. Additionally, in circumstances of judicial review the grant of discretionary remedies may well be refused where a form of internal recourse and remedy is available.688 The shortcoming of the present investigation,
683 See Forbes Justice in Tribunals, [14.1]-[14.6]. 684Calvin v Carr (1979) 1 NSWLR 1.
685
See generally Chapter 3, section 3.3, above.
686
University of Tasmania Ordinance 9 – Student Discipline, subs 4.3.
687 Including the decision to exclude a student from the University (Curtin University of Technology Statute 10 – Student Disciplinary Statute subs 4(b)), which may be made by the Vice-Chancellor or a delegate of the Vice-Chancellor, and expulsion from the University subject to confirmation by the University Council.
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however, is that, while appeal by way of re-hearing is expressly established in various rules, what occurs in practice in half of the surveyed institutions is uncertain.
6.7 Conclusions
Since the 1960s universities have found themselves increasingly obliged to accord their students elementary administrative justice. In a situation where the student may be deprived of their status as a student, or face some other substantial deprivation, the university will be required to accord the student procedural fairness. Procedures for subjecting a student to university discipline may result in the suspension or expulsion of the student, revocation of a degree, or imposition of other significant penalty. Design of these rules has been crafted from the functional need to maintain internal order and academic standards, as well as the application of standards of fairness in decision-making required by law.
In their study of student discipline procedures in US universities, Berger and Berger have remarked: 689 ‗Bedrock safeguards such as written notice of charges, the right to an impartial hearing body, respect for the privilege against self-incrimination, and availability of appeal are almost universally accepted.‘ It may be said of Australian universities that, taking into account differing constitutional arrangements, ‗bedrock safeguards‘ are equally universal. This is true for basic tenets of procedural fairness: the right to a hearing, the right to adequate notice, and the right to an appeal. Procedural standards can vary widely across institutions, and it should not be discounted that in some instances high standards of procedural fairness apply, sometimes in excess of what would be required at common law.
In general, shortcomings are more pronounced when we consider those elements of fair procedure that give effect to (student) participation in the hearing process. It is unsurprising, in an effort to limit adversarial procedure, that the right to cross-examine other parties or witnesses is not expressly provided for in most disciplinary codes. But equally it does not require a leap of the imagination to anticipate circumstances where such a right may, in the circumstances, facilitate the attainment of fairness. Such flexibility ought to be appreciated in the rules and generally it is not. Rules regarding representation are more explicit and restrictive. Universities are justifiably concerned not to legalise proceedings and they are certainly under no obligation to do so. However, the prevailing approach expressly prohibits or constrains even non-legal representation. This is an inflexible position. It drifts toward clear unfairness where the question of representation cannot even be countenanced by the decision-maker.
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Provision of reasons is a further area where there is unevenness in approach. At common law, fairness does not require a decision-maker to give reasons, although there are circumstances where statutory review schemes would compel the giving of reasons in disciplinary cases if they were requested. Those institutions that do not impose a duty to give reasons cannot be faulted technically on grounds of fairness, at least against the common law standard. If they are to be faulted, it may be on grounds of good practice: that decisions, especially those affecting a student in a substantial manner, should be reasoned, transparent (to the student) and respectful.690
Application of fair standards in appeal rights is also equivocal. While appeal procedures themselves commonly have stronger procedural safeguards than hearings at first instance, appeal rights may prove a site of unfairness where grounds of review are restricted and a form of merits review is inaccessible. Limitation of internal appeal rights is made more problematic in the university sector by the general absence of statutory merits review for university decisions.
Warnings against the ‗legalisation‘691
of the student-university relationship, or of the ‗over- judicialisation‘692
of administrative proceedings, are important to bear in mind in domestic proceedings concerning students. At the same time, standards of procedure ought to be assessed in a context of the growing financial liabilities borne by students, a growing propensity to (and avenues for) litigation, and at best uncertain avenues for merits review of university decisions. Published university discipline schemes may generally be described as fair, although this should not detract from the need to address procedural shortcomings at some institutions and in relation to certain standards across the sector.693
690
See Galligan Due Process and Fair Procedures, 429-434.
691 Rochford ‗The Relationship Between the Student and University‘.
692 Eg Lord Diplock‘s statement in Bushell v Secretary of State for the Environment (1989) AC 75, 97. 693
This assessment compares rather more critically to Dutile‘s (limited) assessment of disciplinary procedures, noted above at Chapter 5, section 5.1: Dutile ‗Law, Governance and Academic and Disciplinary Decision in Australian Universities: An American Perspective‘.
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Table 6.2: Appeals procedures in student discipline rules, selected universities
University Re-hearing de novo expressly required
or reasonably inferred from the
rules?
Grounds Relevant provisions in
scheme
U Syd No Determination unreasonable; denial of natural justice; evidence should not have been admitted; new evidence; misapplication of rules; general miscarriage of justice; excessive or inappropriate penalty
University of Sydney By-Law 1999, subs. 79(c)
JCU No Denial of procedural fairness Student Academic Misconduct Requirements, subs 7.4.2
Curtin Yes Both student and university may appeal any decision; matter may be heard de novo, on penalty, or on point of law
Statute No. 10 – Student Disciplinary Statute, subss 19(1), 19(2), 20(2)(a)-(c)
Deakin No New evidence; excessive penalty; misapplication of rules
Regulation 4.1(1), subs 17, 25
Swinburne Yes Matter not heard on merits; new evidence; ―procedural irregularity‖
Regulation 16 – Student Discipline, subs 6.1(a)-(c)
Newcastle Yes (Discretion with appeal body) Student Discipline Rules, s 3
Griffith Yes (Discretion lies with appeal body) Council Resolution 6/2005 Student Misconduct, subs 12.1, 13.1.11
Monash Yes Excessive penalty; bias; ―significant procedural irregularity‖; new evidence
Statute 4.1 – Discipline, s 11.1
UWS No Denial of procedural fairness; new evidence
Student Academic Misconduct Policy, sub 14.2
ANU No (Broad discretion lies with appeal body; committee may substitute its own decision for primary decision)
Discipline Statute 2005, subs 19.1, 21, 23.1(c)
UTS No ―misunderstanding‖ of rules; error of fact; denial of procedural fairness; new evidence; penalty ―manifestly excessive or inappropriate‖
Student and Related Rules, subs 16.18
Tasmania No Bias; denial of procedural fairness; new evidence; penalty ―manifestly excessive or inappropriate‖
Ordinance No. 9 – Student Discipline, sub 4.2
Queensland Yes (Discretion with appeals body) Statute No. 4 (Student Discipline and Misconduct), ss 15, 16
RMIT No Bias; denial of natural justice; excessive or inappropriate penalty
Regulation 6.1.1 – Student Discipline, s 24
Wollongong Yes Denial of procedural fairness; new evidence
Rules for Student Conduct and Discipline, subs 7.3.1
Sunshine Coast
Yes (Discretion with appeal body) Student Conduct and Discipline Policy. subs 9.1.1, 9.3.1
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Chapter 7
Delivering In-House Justice? Practice and Procedure in University
Discipline
The slim body of empirical literature that exists on student disciplinary action in universities focuses analysis on published rules and the case law applying to higher education.694 Investigation of formal discipline rules and procedures does shed light on this form of university decision-making up to a point. The limitation effectively lies in how the rules are translated into practice – if we may paraphrase T S Eliot,695 in the ‗shadow‘ between the formal rules and the reality of their practical implementation.
Other fields of scholarship, such as psychology, have shed light on phenomena of student (mis)behaviour.696 However, as valuable as this research is, it has done little to advance knowledge about university conduct with respect to student ‗indiscipline‘ and transgression, especially in academic endeavours.
This chapter seeks to fill this gap in knowledge of decision-making by university discipline tribunals. It seeks to extend investigation of basic legal norms operating in disciplinary proceedings through consideration of available information on ‗in-house‘ cases at Australian public universities.