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Student Misconduct Rule - Student Misconduct Procedural Guidelines

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Preliminary

(1) These Guidelines are the Student Misconduct Procedural Guidelines (“Guidelines”) and are made by the Vice-Chancellor and President under clause 69 of the Western Sydney University Student Misconduct Rule (“Rule”).

(2) These Guidelines replace and supersede any policy, rule or instrument regarding procedural matters for the management of matters under the Student Misconduct Rule previously in force.

Purpose and Application

(3) These Guidelines establish procedures to assist decision-makers in carrying out their roles and responsibilities when managing allegations of misconduct and imposing sanctions under the Rule.

General Statements about these Guidelines

(4) Decision-makers must exercise their responsibility on a case-by-case basis, with regard to the particular facts and circumstances of the matter and the provisions of the Rule.

(5) Nothing in these Guidelines prevents a decision-maker from exercising any discretion they have under the Rule in a manner they consider appropriate to the particular facts and circumstances of the matter before them, provided that the exercise of power is fair, and not arbitrary or capricious.

(6) Any decision-maker who requires further assistance in coming to a decision under the Rule may contact the Office of Governance Services for procedural or process direction and/or the Office of General Counsel to obtain legal advice.

(7) Words and expressions in these Guidelines have the same meaning as their definition in the Student Misconduct Rule.

Preliminary Investigations

Purpose

(8) The preliminary investigation process is set out in Part 2 of the Rule.

(9) The purpose of a preliminary investigation is to obtain as much factual detail about the alleged misconduct in order to decide whether:

  1. it should be dismissed and no further action taken;
  2. it should be dealt with under the Student Misconduct Rule - Inappropriate Behaviour Guidelines;
  3. if it appears that the circumstances were caused or contributed to because the respondent student has a health condition, it should be referred and dealt with under the Medical Assistance Policy;
  4. the matter should be dealt with either as Category 1 or Category 2 misconduct (which may mean further investigation is needed, particularly if it is for Category 2 misconduct).

(10) As part of this process, the Authorised Officer may need to interview the student and any other witnesses. The process is set out in clause 5 of the Rule.

Decision or Referral

(11) If, following preliminary investigation, an Authorised Officer assesses the matter as Category 2 misconduct, then he or she must refer it to the Office of Governance Services, who will then determine whether the matter, if proven, would constitute Category 2 misconduct and should therefore be dealt with by a Student Misconduct Committee. The Office of Governance Services may investigate the matter further in order to reach their determination. 

(12) The Director, Governance Services may refuse to accept a referral for Category 2 misconduct on direction if it appears that the matter, if proven, only warrants a Category 1 Sanction. If this occurs, then the Authorised Officer must proceed to decide the matter as Category 1 misconduct.

Suspension Orders

(13) If the alleged misconduct involves conduct that puts the University or others at risk, Authorised Officers should consider whether to recommend to a Senior Authorised Officer whether a Suspension Order should be issued, particularly where a Temporary Restriction Order has already been made (refer Part 7 of the Rule). The process for making Suspension Orders is dealt with in Part 8 of the Rule. Also see below.

Hearing Process

Introduction

(14) The hearing process is set out in Part 3 of the Rule and applies to both Category 1 and Category 2 misconduct matters. It contains important requirements concerning notice requirements for students and the hearing process.

(15) There are also additional requirements set out in Part 9 (clauses 49 to 56) that govern how hearings should be conducted. These include requirements to act fairly and impartially, how to deal with conflicts of interest, questioning witnesses and so on.

Questioning Witnesses

(16) Under clause 12 of the Rule, there is no automatic right for a respondent student to question witnesses, either as part of the investigation process or at the hearing. Authorised Officers and Chair of the Student Misconduct Committee are to take into account the following factors:

  1. the identity of the witness, including whether the person is a staff member or student of the University or another person outside of the University (but also see clause 22 below);
  2. the impact on the witness, including whether or not they wish to remain anonymous and their ability to participate in any hearing, noting that anonymity of witnesses cannot be guaranteed in any matters;
  3. the relevance or probative value of the evidence given by the witness and whether this evidence can be adduced in an alternative form;
  4. the requirement on the decision-maker to act as quickly and with as little formality as possible under clause 49 (1)(a) of the Rule.

(17) If a decision-maker permits a witness to be questioned by the respondent student (or that person’s advocate) under clause 12 of the Rule, the decision-maker may also make procedural directions regarding the form of questioning. This may include:

  1. the decision-maker assessing the question(s) for relevance prior to being put to the witness;
  2. the questions being put to the witness in a specified form, including through the Chair, in writing or directly by the respondent student;
  3. the witness’ identity be concealed during questioning;
  4. the witness giving evidence by video or audio recording, which is then made available to the respondent student to have the opportunity to respond.

(18) The University may make submissions to a decision-maker concerning whether a witness should be required to ask further questions and/or compelled to appear and give evidence in a particular matter.

Standard of Proof of Evidence

(19) The normal rules of evidence that apply to court proceedings do not apply to administrative processes such as student misconduct [refer clause 49(2)]. In addition, the standard of proof required is not, for serious offences, the criminal standard of “beyond reasonable doubt”. The standard of proof is the civil standard of “balance of probabilities”. That said, there is a general rule (known as the Briginshaw test) that applies, that is, the more serious the alleged offence, then the more rigour that should be applied in testing the evidence. However, this does not mean that the criminal standard of proof applies.

Support Persons and Advocates

(20) Under clause 53 of the Rule, students are permitted to be accompanied by a support person (which may include a lawyer) when being questioned as part of an investigation process or at the hearing. However, support persons are not allowed to disrupt or delay the proceedings and must be available on the day of the hearing.

(21) If the student is represented by a lawyer, the decision-maker should consult with the Office of General Counsel concerning any communications from the student’s lawyer before responding.

Cooperation required by University Staff and Students

(22) It is a requirement under clause 50 of the Rule that any University staff or students who are witnesses in a misconduct case cooperate with an investigation and, if required, give evidence at the hearing. This is designed to ensure the integrity of the misconduct process.

(23) If a staff member wishes to be exempted from appearing as a witness, then he or she must first seek written permission from the Senior Deputy Vice-Chancellor and describe the extenuating circumstances as to why he or she should be exempted, along with any supporting evidence (such as a medical report).

Sanctions

Introduction

(24) Following a finding of misconduct, a decision-maker must consider whether to impose a sanction on a respondent student taking into account those matters set out in clause 29 of the Rule.

Prescribed Minimum Sanctions

(25) Clause 25 prescribes minimum sanctions that apply to certain types of misconduct. These sanctions must be imposed by the decision-maker unless the student can establish that extenuating circumstances apply. For a consideration of what may constitute extenuating circumstances, please see clauses 28 – 35 below.

(26) Clause 25(2) provides that a decision-maker may issue a more severe sanction than a prescribed minimum sanction. The types of factors that may be appropriate for a decision-maker to impose a more severe sanction include:

  1. where the misconduct is particularly aggravated or egregious or where the recipient of the misconduct is at a special disadvantage because of some personal characteristic known to the perpetrator, or there are other related factors that contribute to the seriousness or gravity of the misconduct;
  2. a lack of demonstrated and genuine remorse by the respondent student (as opposed to remorse because the student has been caught out);
  3. continued and/or unreasonable denial of the factual allegations where the decision-maker has cogent and credible evidence available in support of the allegations;
  4. where the respondent student has previously provided an undertaking not to repeat the same or similar behaviour, or has provided an apology in relation to the same or similar behaviour.

(27) For misconduct that does not fall within clause 25, a decision-maker is to consider whether a sanction should be imposed within the category of misconduct that is within his or her delegation. Table 1 (below) provides a general guide for the range of sanctions that may apply for certain types of misconduct. This guide should be considered in light of other factors that are to be taken into account by the decision-maker under clause 29.

Extenuating Circumstances

(28) The definition of ‘extenuating circumstances’ as set out in clause 66 of the Rule is:

  1. are beyond the person's control, i.e. the person is not responsible, directly or indirectly, for the situation. These events or circumstances must be unusual, uncommon or abnormal; and
  2. are claimed by the student with appropriate independent supporting documentation which the University may verify.

(29) To meet the definition of ‘extenuating circumstances’, a student must demonstrate that the circumstances described:

  1. existed prior to, or at the time that the misconduct occurred;
  2. occurred outside of the control of the student and the student was not directly or indirectly responsible for any cause;
  3. would be considered by a reasonable person to be unusual, uncommon or abnormal;
  4. had a serious impact on the respondent student prior to, or at the time the misconduct occurred.

(30) Examples of extenuating circumstances may include, but are not limited to, any of the following before or at the time of the misconduct:

  1. an incident of trauma or an accident that may have required medical attention or significant disruption to the student;
  2. occurrence of an unexpected event, such as a natural disaster, fire;
  3. death of a close relative or friend.

(31) A claim for extenuating circumstances must be accompanied by supporting evidence that independently verifies the existence of the circumstances. Self-reporting by the student, such as through a statutory declaration, will be insufficient as a stand-alone document. Appropriate evidence may include:

  1. police reports or security incident reports;
  2. expert medical or psychological reports from a practitioner with appropriate expertise or experience (that is, not just a report from, for example, a counsellor or a general practitioner);
  3. media reports or articles;
  4. official government documentation, such as a death certificate;
  5. other evidence that demonstrates the facts asserted by the student, such as photographs, travel documents or letters of support from an independent person.

(32) It is the student’s responsibility to produce evidence in support of a claim for extenuating circumstances. An Authorised Officer is not required to undertake inquiries on the student’s behalf other than to verify the authenticity of any evidence provided.

(33)  Students who wish to present expert evidence in support of extenuating circumstances must ensure that the practitioner attests to the temporal element of the circumstances in relation to the misconduct and generally complies with the requirements of the Expert Witness Code of Conduct prescribed in Schedule 7 of the Uniform Civil Procedure Rules 2005 (NSW). Medical certificates or reports will not otherwise be accepted as evidence of extenuating circumstances.

(34) The University may make submissions to a decision-maker concerning a claim of extenuating circumstances made by a student.

(35) A decision-maker may seek further advice in relation to a claim of extenuating circumstances made by a student as to whether it is appropriate to vary a minimum sanction under clause 25.

Effect of Sanctions

(36) Clause 30 of the Rule sets out the effect of particular sanctions that relate to suspension, temporary or permanent exclusion and expulsion.

(37) Under clause 30(9), a decision-maker may amend the effect of a sanction on a respondent student if satisfied that extenuating circumstances exist.

Table 1: A general guide for the range of sanctions that may apply for certain types of misconduct

(38) This table is intended to be used as a guide only for Authorised Officers, Senior Authorised Officers and Student Misconduct Committees (including Appeals Committees) as specified in Schedule 1 to the Student Misconduct Rule. It is not intended to be used for matters dealt with under the Inappropriate Behaviour Guidelines. The range of sanctions that could be applied below, and the examples of the type of misconduct are indicative only and do not take into account the particular facts and circumstances of every case. Authorised Officers should seek specific advice from the Office of Governance Services if they require clarification in a particular case.

Type of Misconduct Examples of the range of sanction
Category 1 academic misconduct, first offence
e.g. plagiarism, self-plagiarism, inappropriate collaboration with others outside of group work instructions
  1. Reprimand and a
  2. direction to provide an undertaking not to repeat the behaviour
  3. direction to complete a module in academic literacy
  4. reduction in mark for the assessment
Category 1 academic misconduct, first offence, multiple occurrences or affecting a threshold assessment item or significant assessment item
sanctions as set out above;
discretion to add:
  1. fail in the unit
Category 1 academic misconduct, single occurrence, second offence
sanctions as set out above;
disrection to add:
  1. fail in the unit
Category 1 academic misconduct, third and subsequent offence
  1. fail in the unit; and/or
  2. suspension or temporary exclusion from the course for a period of between 1 full session to 4 sessions or 2 years (whichever is greater)
Category 2 or 3 academic misconduct, first offence
e.g. evidence that student procured another to produce a piece of assessment on their behalf (i.e. contract cheating), evidence of fraud or dishonesty with the academic misconduct including submitting fraudulent or falsified documentation, evidence of students colluding to knowingly gain an advantage in academic assessment
  1. direction to provide an undertaking not to repeat the behaviour in addition to
  2. direction to complete a module in academic literacy
  3. fail in the unit
  4. suspension or temporary exclusion from the course for a period of between 1 full session to 4 sessions or 2 years (whichever is greater)
Category 2 or 3 academic misconduct, multiple occurrences first offence
  1. fail in the affected units
  2. temporary exclusion for up to 12 months for the affected units
  3. suspension or temporary exclusion from the course for a period of between 1 full session to 4 sessions or 2 years (whichever is greater)
Category 2 or 3 academic misconduct, second and subsequent offence
  1. fail in the unit and/or
  2. suspension or temporary exclusion from the course for a period of between 1 full session to 4 sessions or 2 years (whichever is greater)
    Or
  3. Permanent exclusion from the course
    Or
  4. Expulsion
Category 1 general misconduct, first offence
e.g. Conduct that is not appropriate and that is minor in nature and an isolated incident that is appropriate to be handled by a Category 1 Sanction. This may include conduct that breaches guidelines or other directions given by University staff in relation to acceptable standards of behaviour during University activities, or conduct that is covered by any of the following policies: Student Code of Conduct, Sexual Harassment Prevention Policy, Bullying Prevention Policy, Acceptable Use of Digital Services Policy, Discrimination, Harassment, Vilification and Victimisation Prevention Policy
  1. reprimand
  2. direction to give an apology
  3. direction to provide an undertaking not to repeat the behaviour
  4. direction to complete a short course or instructive program that addresses the misconduct
  5. direction not to approach the student and/or staff member affected
  6. exclusion or deferral from undertaking or completing a placement etc
  7. restricted or conditional access to or use of any campus (including buildings and the shuttle bus service), facilities or services
Category 1 general misconduct, multiple occurrences, first offence
sanctions as set out above;
discretion to add:
  1. suspension or temporary exclusion from the course for a period of between 1 full session to 4 sessions or 2 years (whichever is greater)
Category 1 general misconduct, second offence
sanctions as set out above;
discretion to add:
  1. suspension or temporary exclusion from the course for a period of between 1 full session to 4 sessions or 2 years (whichever is greater)
Category 1 general misconduct, multiple occurrences, second offence
  1. suspension or temporary exclusion from the course for a period of between 1 full session to 4 sessions or 2 years (whichever is greater)
  2. permanent exclusion from course
  3. expulsion
Category 1 general misconduct, second or multiple offences
  1. suspension or temporary exclusion from the course for a period of between 1 full session to 4 sessions or 2 years (whichever is greater)
  2. permanent exclusion from the course
  3. expulsion
Any conduct that is automatically categorised as Category 2 general misconduct or is otherwise considered as serious misconduct and does not attract a minimum sanction under clause 25
  1. suspension for up to two years
  2. expulsion