(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. (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. (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. (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: (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. (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. (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. (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. (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: (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: (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. (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. (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. (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 Provost and describe the extenuating circumstances as to why he or she should be exempted, along with any supporting evidence (such as a medical report). (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. (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: (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. (28) The definition of ‘extenuating circumstances’ as set out in clause 66 of the Rule is: (29) To meet the definition of ‘extenuating circumstances’, a student must demonstrate that the circumstances described: (30) Examples of extenuating circumstances may include, but are not limited to, any of the following before or at the time of the misconduct: (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: (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. (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. (38) This table is intended to be used as a guide only for Authorised Officers, Senior Authorised Officers and Student Misconduct Committee (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.Student Misconduct Rule - Student Misconduct Procedural Guidelines
Preliminary
Purpose and Application
General Statements about these Guidelines
Preliminary Investigations
Purpose
Decision or Referral
Suspension Orders
Hearing Process
Introduction
Questioning Witnesses
Standard of Proof of Evidence
Support Persons and Advocates
Cooperation required by University Staff and Students
Sanctions
Introduction
Prescribed Minimum Sanctions
Extenuating Circumstances
Effect of Sanctions
Table 1: A general guide for the range of sanctions that may apply for certain types of misconduct
Type of Misconduct
Examples of the range of sanction
Category 1 academic misconduct, first offence, multiple occurrences or affecting a threshold assessment item or significant assessment item
discretion to add:
Category 1 academic misconduct, single occurrence, second offence
disrection to add:
Category 1 academic misconduct, third and subsequent offence
Category 2 or 3 academic misconduct, multiple occurrences first offence
Category 2 or 3 academic misconduct, second and subsequent offence
Or
Or
Category 1 general misconduct, multiple occurrences, first offence
discretion to add:
Category 1 general misconduct, second offence
discretion to add:
Category 1 general misconduct, multiple occurrences, second offence
Category 1 general misconduct, second or multiple offences
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
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Category 1 academic misconduct, first offence
e.g. plagiarism, self-plagiarism, inappropriate collaboration with others outside of group work instructions
sanctions as set out above;
sanctions as set out above;
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 assessmentCategory 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 Policysanctions as set out above;
sanctions as set out above;