El servicio público municipal y el artículo 115 Constitucional

7.12.1 A Cross-Section of Fairness and Legality

Investigation of student discipline case-files provides greater insight into the actual conduct and practice of decision-makers in these proceedings than is possible from mere scrutiny of rules or reported cases before the courts. This information is not without its limits – notably reliance in documentary records, which are occasionally incomplete – but it does present a microcosm of disciplinary practice and decision-making in this context. It was found that an arguable departure from various legal standards occurred in a significant minority of cases. Other problems of practice and procedure, outside of the scope of prima facie illegality, were also

793

Compare New South Wales Bar Council v Evatt (1968) 117 CLR 177.

794 _{Compare Ex parte Forster; Re University of Sydney (1963) SR (NSW) 723.}

795 _{For example, terms such as ‗guilty,‘ ‗charge,‘ and disciplinary ‗offence‘ are employed in the rules.} 796

See Patrick Quirk ‗An Australian Looks at German ―Proportionality‖‘ (1999) 1 University of Notre Dame Australia Law Review 39.

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noted. Adherence to tenets of procedural fairness, in particular, appeared problematic in a number of discrete cases. In one aspect (provision of particulars at University A) in-house practice constitutes a systemic problem. It may be remarked that, on this evidence, there is room for improvement in disciplinary practices. Improvement might begin with greater education and training of decision-makers, but also needs to consider the role and training of ‗preliminary investigators‘ and, indeed, the structure and operation of disciplinary practice and procedure more generally.

7.12.2 A Confused Model of Procedure?

From what can be ascertained in university files, it is ordinarily the case that student discipline tribunals take an inquisitorial approach to the conduct of proceedings before them, an approach that is open to them. Following formalities regarding recitation of the charges by the tribunal, the student states their case and the tribunal embarks on the process of examination. The role of the representative may be significant, especially where questions of law or policy are concerned. In most cases, the role of the departmental representative is marginal, and reduced to answering relatively technical (eg pedagogical) questions put to him/her by the tribunal.798 The process of examination and questioning is led by the tribunal (under the direction of the chair), and to this extent the tribunal is the leading participant in the proceeding. There are no instances of witnesses called by the student, by the department, or by the tribunal itself. There is no evidence that the tribunal undertakes any investigations on its own motion, and it is rare for the tribunal to raise matters with either ‗party‘ before it that the tribunal believes warrants further inquiry.799

The process of inquiry is substantially contained with the hearing itself, subject to the appropriate requirements of pre-hearing procedure such as notice.

At the level of appearances, then, the proceedings before the tribunal bear similarities to the inquisitorial approach employed in other administrative/adjudicative jurisdictions such as the Refugee Review Tribunal,800 professional discipline and complaints‘ jurisdictions, or some administrative appeals jurisdictions.

798 _{On at least one occasion, a direct confrontation between the student and departmental representative}

occurred, which assumed the form more of a dispute between witnesses than any type of examination or cross-examination. The incident appears to have started at the instigation of the departmental representative and the tribunal appeared somewhat tardy in putting a halt to it.

799 _{In one case, the tribunal adjourned the proceedings in order to receive additional evidence from the}

School in respect of allegations of plagiarism. On reconvening the representative for the student raised a number of procedural matters (eg regarding the burden of proof) which were dismissed, probably ill- advisedly, by the tribunal.

800 _{See eg the description of procedure at the Refugee Review Tribunal (‗RRT‘) in Catherine Dauvergne}

and Jenni Millbank ‗Burdened by Proof: How the Australian Refugee Review Tribunal has Failed Lesbian and Gay Asylum Seekers‘ (2003) 31 Federal Law Review 299, 304: ‗In a typical RRT hearing there are only three people in the room: the decision-maker, the claimant and an interpreter. The claimant tells her story and the Tribunal decides if she is a refugee. Credibility is often an issue… Witnesses are

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The situation regarding procedure in student discipline actions is distinguishable in a number of key respects. First of all, student discipline tribunals are not required to produce reasoned decisions, and there is no evidence in the investigated cases of those bodies being asked to produce reasons. Second, while certain avenues of external appeal from university decisions exist, these proceedings operate in-house and are relatively remote from judicial control. They are largely removed from public scrutiny. Third, they are an expression of an exceptionally broad, if not ‗peculiar,‘ statutory discretion. Fourth, as distinct from ‗purely‘ administrative adjudication, these actions are accusatorial, and have the overtones of ‗quasi-criminal‘ conduct. In this respect, it might seem reasonable to assume a greater relevance for adversarial method (than for example in RRT or planning disputes). Indeed if we give regard to general conceptions of the adversary system it is clear that important elements of adversary procedure do remain in the approach by these disciplinary tribunals. For instance, in his seminal critique of the adversary system, Sir Richard Eggleston801 proposes four features of the adversary system: the parties determine the conduct of the litigation up to the trial; procedure concentrates the judicial function into one continuous hearing; evidence is elicited by the parties; sanction for breach of the judicial body‘s rules is normally at the request of a party. In respect of university discipline proceedings, the first two of these features tend to be present, while the second two are generally absent.

An important distinguishing feature of student disciplinary proceedings, therefore, is that the adversary-formulated approach of concentrating the decision-making process at a single, continuous hearing is combined with the inquisitorial method expressed in the leading, participatory role of the decision-maker. That is to say, the inquiry or investigative process is substantially limited to the oral hearing. There is no clear distinction to be made between the investigative component of the process and the adjudicative element. Preliminary procedure is, in this respect, minimal, and comprises principally of the process of ‗referral‘ of a matter to a disciplinary tribunal.802 In practice, preliminary investigation803 does occur, relatively ad hoc, and there is no formal requirement to determine whether a prima facie case exists.

rarely called, and most often the claimant does not have anything ―on paper‖ to support their story… Many of the accepted ways of establishing truth in a legal setting are absent.‘

801 _{Sir Richard Eggleston ‗What is Wrong with the Adversary System?‘ (1975) 49 Australian Law} Journal 428, 429.

802

Preliminary investigations in disciplinary matters may be exempted from many of the safeguards built into the hearing rule of procedural fairness, under the assumption that the opportunity to be heard (and other accompanying standards as may be appropriate) will be afforded at a later stage of the proceedings:

Velasco v Carpenter (1997) 48 ALD 22 (‗The rules of procedural fairness clearly applied to the inquiry and were to be adapted to the exigencies of an inquisitorial inquiry which was only in its formative stages.‘)

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It is noteworthy by way of comparison that statutory schemes for professional complaint and discipline have increasingly moved toward a separation of the procedures and powers of preliminary investigation and adjudication, or of complaint-handling and discipline.804 This trend has been referred to as ‗co-regulation‘805

(between profession and government agency). It has occurred as part of a move away from ‗peer review,‘ or in other words internal regulation and sanction within ‗autonomous‘ professional communities. Increased statutory control over professional conduct is, in this respect, in some contrast to continued ‗domestic‘ regulation by universities in respect of students‘ conduct – also under the rubric of autonomy.

It is worth bearing in mind that reform of procedure and powers in these jurisdictions was prompted by, among other things, injustices or inadequacies in previous models of regulation. The rise of a ‗consumer‘-focused ethic has had a major influence on these new models of procedure. Consumerist discourse in higher education, by contrast, has seemingly led to little advance in models of individualised administrative justice.

803 _{The distinction between preliminary investigations (to which an opportunity to be heard does not}

necessarily apply) and a hearing proper (where the duty to afford an opportunity normally will arise) is considered further in Chapter 10, subsection 10.2.2, below.

804 _{See Thomas ‗Peer Review as an Outdated Model for Health Practitioner Regulation‘. As Thomas}

notes in respect of ‗co-regulation‘ (at 34): ‗It should be said that the Medical Board welcomed this development. Co-regulation provided investigatory expertise and resources which the Board itself lacked at the time and the new system [in NSW] operated successfully and relatively smoothly after it was introduced.‘ Compare the description of the new procedural and regulatory arrangements for health practitioners in Victoria in the Minister‘s Second Reading Speech, on introduction of similar reforms to the Victorian Parliament:

‗… the [Health Professions Registration] bill establishes better separation of powers in the disciplinary processes of boards. The bill provides for the hearing of serious allegations of professional misconduct by the Victorian Civil and Administrative Tribunal, rather than within each board. This reform separates the investigation and prosecution function undertaken by boards from that of hearing and determining such disciplinary matters. With the transfer of this function to VCAT, the bill preserves the principle of peer review in disciplinary decision making while creating a structural framework to ensure procedural fairness. Panel hearings within VCAT that make final determinations concerning health practitioners will be constituted by at least three persons, of whom two must be practitioners from the same profession as the practitioner who is the subject of the disciplinary action.‘

(Victoria, Parliamentary Debates, Legislative Assembly, 27 October 2005, 1946 (Ms Pike, Minister for Health)).

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Chapter 8

University Discipline and the ‘Higher Education Crisis’: Student

Advocates’ Experiences and Perceptions of Quasi-Judicial Decision-

Making in the University Sector

8.1 Introduction

This chapter presents the third part of empirical investigations into disciplinary decision- making. In this case, the focus is on the experiences, perceptions and opinions of student advocacy staff within the university system.

8.2 Methodology

In the first half of 2006, 13 semi-structured interviews were conducted with 14 student advocates/student rights officers (working at 13 different public universities). Each interview was approximately one-hour in length. The interviews included questions intended to investigate disciplinary practice and procedure, provide an overall assessment of decision- making practices, and consider the impact of university commercialisation on this type of institutional action. The interviewees worked within a range of institutions, encompassing the spectrum of institutional types: ‗sandstone‘ to ‗new generation,‘ metropolitan and regional. Their experiences in the role also varied, with incumbency ranging from several months to 18 years and disciplinary caseloads ranging from single figures to hundreds. A schematic overview of information and responses is presented in Table 8.1. Interviewees are coded by number.