Student Misconduct Rule - Student Misconduct Procedural Guidelines

• Preliminary
• Purpose and Application
• Definitions
• General Statements about these Guidelines
• Preliminary Investigations
• Purpose
• Decision or Referral
• Suspension Orders
• Hearing Process
• Introduction
• Questioning Witnesses
• Standard and Burden of Proof
• Support Persons and Advocates
• Cooperation required by University Staff and Students
• Police Investigation
• Sanctions
• Introduction
• Prescribed Minimum Sanctions
• Exceptional Circumstances
• Effect of Sanctions
• Table 1: A general guide for the range of sanctions that may apply for certain types of misconduct
• Research Misconduct
• Process for Managing Potential Research Misconduct
•  Trauma Informed Guidelines for Sexual Misconduct
• Collecting Evidence from Victims of Trauma
• Regular and Timely Communication
• Timeframes
• Training

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.

(4) These Guidelines also establish the framework for taking a trauma informed approach when managing allegations of any sexual misconduct under the Rule. The University processes are designed to avoid causing further harm or any inadvertent penalty to survivors.  

Definitions

(5) Unless otherwise stated, words and phrases contained in these Guidelines shall have the same meaning as set out in the Student Misconduct Rule and the following:

1. Affirmative Consent means a free and voluntary agreement that must be present when sex occurs. A person has a right to withdraw consent at any point. Consent to one sexual act doesn’t mean consent has been given to other sexual acts. Affirmative consent means that:
   1. a person does not consent to sexual activity unless they said or did something to communicate consent and
   2. an accused person’s belief in consent will not be reasonable in the circumstances unless they said or did something to ascertain consent.
2. Codes mean the University's Responsible Conduct of Research Policy and the Australian Code for the Responsible Conduct of Research.
3. Research Misconduct means where conduct by a person that is inconsistent with the principles of responsible research conduct under either or both Codes. University's Responsible Conduct of Research Policy and /or the Australian Code for the Responsible Conduct of Research have not been met.
4. A Research Breach means a contravention of the Responsible Conduct of Research Policy and/or the Australian Code for the Responsible Conduct of Research, where:
   1. the student has not had a previous finding of a breach or Research Misconduct made against them and
   2. the consequences arising from the breach are not sufficiently serious to amount to Research Misconduct.
5. Reporting Student means a student who reports the misconduct of another student. If the Reporting Student has been the subject of sexual misconduct, they may also be referred to as a ‘victim’, ‘survivor’ or ‘affected person’.
6. Sexual misconduct means a sexual act by a perpetrator in circumstances where the survivor does not consent.
7. Trauma means a response to a deeply distressing or disturbing event that overwhelms an individual’s ability to cope, causes feelings of helplessness, diminishes their sense of self and their ability to feel a full range of emotions and experiences.
8. Trauma Informed Approach means an approach that is designed to decrease the inadvertent re-traumatisation that can occur from implementing standard organizational policies, procedures, and interventions with individuals who have experienced trauma. Many survivors of trauma have been inadvertently re-traumatised in systems of care lacking the requisite knowledge and training of the sensitivities, vulnerabilities, and triggers of trauma survivors. Trauma informed processes aim to reduce further harm by avoiding practices that re-traumatise or blame victims for their efforts to manage their traumatic reactions. A trauma informed approach is based on the principles of safety, trust, choice, empowerment, collaboration, and respect.
9. Student Case Coordinator means a person who is a University staff member who is trained in trauma informed approaches and provides students involved in serious misconduct issues as either a victim or a respondent, with support, up to date and relevant information and case management from the point of first-contact and throughout the misconduct process. Their role is to ensure students understand the support and processes available to them, in order to make informed choices.

General Statements about these Guidelines

(6) 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.

(7) 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.

(8) 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.

Preliminary Investigations

Purpose

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

(10) 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 or another policy of the University
3. it appears that the circumstances were caused or contributed to because the respondent student has a serious and ongoing health condition, which is beyond their control. 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).

(11) 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

(12) At the end of the Preliminary Investigation, the Authorised Officer must do one of the things set out in Clause 5(6) of the Rule.  Not all of the options will be available in every case.

(13) The first option is for the Authorised Officer to dismiss the allegation.  That can only be done on two grounds.  The first is if “the Authorised Officer considers there is no substance to it”, and the second is if “it is so trivial or vexatious as not to warrant further action”.

(14) An allegation is of “no substance” (or “unsubstantiated”) when there is so little evidence to support it that it cannot be reasonably maintained and should only be found in the clearest of circumstances.  At this early stage, the Authorised Officer is not expected to decide the strength of the case against the Respondent Student on a final basis, and a “weak” case may still have substance.  An example of a case with “no substance” is where a Reporting Student refuses to give a written statement and there is no other evidence (such as text messages or other witnesses) to support the allegation.  On the other hand, an allegation supported by a signed written statement of the Reporting Student does have “substance” (and so should not be dismissed on this ground) even if there is no other corroborating evidence.

(15) An allegation is “trivial” if the nature of the misconduct alleged is of little importance and had little or no appreciable impact on the University or any other person.  On the other hand, an allegation is “vexatious” if it is brought to harass or annoy the Respondent Student or the University, rather than for the proper purpose of reporting misconduct to the University so that appropriate steps can be taken to sanction any wrongdoer and prevent it from occurring again in the future.

(16) The second option is for the Authorised Officer to arrange for the matter to be dealt with under the Student Misconduct Rule – Inappropriate Behaviour Guidelines or other specific policies and processes of the University.  The Inappropriate Behaviour Guidelines do not apply in every case, and particular categories of misconduct are expressly excluded by Clauses 5 and 6 of the Rule.

(17) The third option is for the Authorised Officer to assess the allegation as Category 1 misconduct.  If that assessment is made, the Authorised Officer is then permitted to deal with the matter themselves.  If the Respondent Student admits the allegation of misconduct, then the Authorised Officer can impose the Category 1 sanctions they consider appropriate (listed in Clause 22 of the Rule).  If the Respondent Student does not admit the allegation, then the Authorised Officer should further investigate, hear and decide it in accordance with Part 3 of the Rule.

(18) The final option, if, following preliminary investigation, the Authorised Officer assesses the matter as Category 2 misconduct, then they 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. The Authorised Officer must make this referral regardless of whether the Respondent Student admits to the alleged misconduct.

(19) 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.

(20) If a Senior Authorised Officer (SAO) conducts a preliminary investigation, and the respondent admits to the allegation/s, and the SAO assesses the matter as Category 2 misconduct, the SAO can determine and apply a sanction.

Suspension Orders

(21) If the alleged misconduct involves conduct that puts individuals or the University 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. 

Hearing Process

Introduction

(22) 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.

(23) There are also additional requirements set out in Part 9 of the Rule (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

(24) 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 
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, and
5. the trauma informed guidelines noted in this document.

(25) 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.

(26) The University may make submissions to a decision-maker concerning whether a witness should be required to respond to further questions and/or compelled to appear and give evidence in a particular matter. If the witness concerned is a Reporting Student, then the Student Case Coordinator will consult with them about measures that may be taken to maximise their psychological safety and to minimise their distress or anxiety while responding to questions the decision makers may have.

(27) Any evidence collected from a witness upon which a decision maker relies, must be provided to the Respondent Student allowing an appropriate response period before a determination is made.  Generally, 10 days is considered an appropriate period to allow the respondent student to respond. However, there may be times where the urgency of the case means that period should be shortened, in which case written consent should be gained from the respondent student.

Standard and Burden of Proof

(28) The normal rules of evidence that apply to court proceedings do not apply to administrative processes such as student misconduct [refer Part 9 clause 49(2) of the Rule]. In addition, the standard of proof required is not, for serious offences, the criminal standard of “beyond reasonable doubt”. The standard of proof for student misconduct matters at the University is the civil standard of “balance of probabilities”. In practical terms, a matter is proven “on the balance of probabilities” when it is more likely to have happened than not happened. That said, there is a general rule (known as the Briginshaw test) that applies. That is, where the allegation is serious in nature (as almost all student misconduct is), the decision maker should be particularly careful in examining the evidence to determine whether they are “reasonably satisfied” the allegation is proven on the balance of probabilities. However, this does not mean that the criminal standard of proof applies.

(29) The “burden” or “onus” of proving the allegations against the Respondent Student lies on the University.  Accordingly, if the Authorised Officer or Student Misconduct Committee is unable to decide whether the allegations are more probable than the Respondent Student’s defence, then the allegations should be dismissed. This is sometimes referred to as “the presumption of innocence” or that a Respondent Student is “innocent until proven guilty”.

Support Persons and Advocates

(30) Under clause 53 of the Rule, Respondent 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.

(31) The role of a support person is to provide the Respondent Student with practical and emotional support during the investigation or hearing. They may advocate on the Respondent Student’s behalf, particularly if the support person is a lawyer, but as stated in clause 53(3) of the Rule the Respondent Student can still be required to directly answer questions put to them in relation to the allegations.

(32) If the Respondent Student is represented by a lawyer, the decision-maker should consult with the Office of General Counsel concerning any communications from the lawyer before responding.

(33) Witnesses generally cannot also be support persons. That is because the roles of support person and witness are inconsistent with one another. The role of a witness requires them to provide truthful and accurate evidence to assist the Authorised Officer or Student Misconduct Committee, and therefore should remain as impartial as possible. Whereas a person who is present to support and possibly advocate for the Respondent Student is not entirely impartial. The only circumstances in which a witness may also be a support person is:

1. if the witness has given their evidence in its entirety and
2. they agree not to take any active part in the proceedings, that is, that they will only provide emotional support to the Respondent Student and not provide practical support such as by acting as the Respondent Student’s advocate.

Cooperation required by University Staff and Students

(34) 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.

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

(36) Witnesses can request to remain anonymous, should they so wish; although the University cannot always guarantee anonymity in the proceedings as the circumstances and details of the case may result in the Respondent Student determining the witnesses’ identity.

Police Investigation

(37) Unless an incident is of such a nature that the University is required by law to report it to the Police or another government agency, the Reporting Student should decide whether to report the incident to Police.

(38) Where a Reporting Student advises the University that they have reported an incident to the police, the University will actively seek advice from the police about whether a parallel misconduct investigation would adversely affect any resulting external criminal process. The University may decide it will not pursue a misconduct investigation until the criminal investigation is complete. However, the University may impose precautionary measures under the Student Misconduct Rule, such as a Suspension Order to ensure the safety of the Reporting Student and the Respondent Student until the external criminal process has concluded.

(39) Where the police advise that a parallel investigation by the University should not take place, the University will abide by this request.

(40) Reporting Students may choose not to report an incident to Police for a variety of reasons.  The Student Misconduct Committee may not draw any adverse inference or conclusion to a Reporting Student on the basis that the Reporting Student decides not to report the incident to police.

Sanctions

Introduction

(41) 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.

(42) Failure of Responding Students to comply with sanctions may result in fresh allegations of misconduct.

Prescribed Minimum Sanctions

(43) Clause 25 of the Rule 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 the section below on extenuating circumstances.

(44) Clause 25(2) of the Rule 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.

(45) For misconduct that does not fall within clause 25 of the Rule, a decision-maker is to consider whether a sanction should be imposed within the category of misconduct that is within their delegation. Table 1 (below) provides a general guide for the range of sanctions that may apply for certain types of misconduct. These guidelines are general, and it is important that each individual case is determined on its own facts. This guide should also be considered in light of other factors that are to be taken into account by the decision-maker under clause 29 of the Rule.

Exceptional Circumstances

(46) ‘Exceptional circumstances’ are events or circumstances that are:

1. unusual, uncommon or abnormal and
2. would render the provision of the Rule to the Respondent Student harsh, unjust or unreasonable.

(47) Exceptional circumstances can be determined by the decision maker on the basis of any evidence they choose. A decision maker may ask for evidence in the form of:

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 responding student, such as photographs, travel documents or letters of support from an independent person.

(48) A claim for exceptional circumstances must be accompanied by supporting evidence that independently verifies the existence of the circumstances. Self-reporting by the Responding Student, such as through a statutory declaration, will be insufficient as a stand-alone document. 

(49) It is the Responding Student’s responsibility to produce evidence in support of a claim for exceptional circumstances. An Authorised Officer or Student Misconduct Committee is not required to undertake inquiries on the Responding Student’s behalf other than to verify the authenticity of any evidence provided.

(50)  The University may make submissions to a decision-maker concerning a claim of exceptional circumstances made by a Responding Student.

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

Effect of Sanctions

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

(53) Under clause 30(9) of the Rule, 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

(54) 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.

Research Misconduct

(55) All Student Research Misconduct will be managed under the Rule. The Inappropriate Behaviour Guidelines are not applicable for matters involving allegations of Research Misconduct.

(56) Examples of conduct that may constitute a Research Breach and/or Research Misconduct include, but are not limited to:

1. fabrication, falsification, plagiarism or deception in proposing, carrying out or reporting the results of research
2. failure to conduct research or follow approved or commonly accepted research protocols
3. conducting research without required ethics approval
4. failure to declare or manage a serious conflict of interest
5. the willful concealment or facilitation of Research Misconduct by others or
6. other practices that seriously deviate from those commonly accepted within the research community for proposing, conducting, or reporting research, but do not include honest differences in judgment in management of the research project, and may not include honest errors that are minor or unintentional.

Process for Managing Potential Research Misconduct

(57) The following steps will be followed:

1. Any suspected breaches of the Codes, or suspected Research Misconduct, must be reported to the Dean, Graduate Studies and Researcher Development (Dean, GS & RD) in the first instance
2. The Dean, GS & RD will assess the matter
3. In assessing the matter, the Dean, GS & RD will consult with the Dean or Director, Research Institute and with the Associate Dean, Research and HDR (or equivalent) of the School or Institute in which the student is enrolled
4. The purpose of the assessment is to ascertain whether there is a prima facie case of a Research Breach or Research Misconduct
5. The Dean, GS & RD will prepare a report on the findings arising out of the assessment and, if that report records a prima facie case of a Research Breach or Research Misconduct the following process will apply:
   1. in the case of an alleged Research Breach, the report will be provided to the Director, Research Impact and Integrity, who will confirm the finding of the Research Breach, and determine that the matter will be managed at the School/Institute level or
   2. in the case of alleged Research Misconduct, the report will be referred to the Office of Governance Services to institute a Student Misconduct Committee to progress the matter under Part 3 of the Rule.

(58) All Student Misconduct Committees investigating, hearing, and deciding Research Misconduct matters must be chaired by the Authorised Officer listed in Schedule 1 of the Rule responsible for investigating, hearing, and deciding research misconduct matters.

(59) General student misconduct involving research students will be investigated, heard and decided by the relevant Authorised Officer and in accordance with the processes set out in the Rule.

 Trauma Informed Guidelines for Sexual Misconduct

(60) The process for managing potential Sexual Misconduct is set out in the Sexual Misconduct Prevention and Response Policy .

(61) All Sexual Misconduct will be managed under the Rule. The Inappropriate Behaviour Guidelines are not applicable for matters involving allegations of Sexual Misconduct.

Collecting Evidence from Victims of Trauma

(62) The University must minimise the number of times a Reporting Student is required to recount a traumatic experience. For example, the Reporting Student should not have to recount their version of events at length and in detail to a misconduct committee or Authorised Officer if they have already made a formal statement to the University.

(63) If the investigator, Authorised Officer, or Student Misconduct Committee have specific questions to the formal statement made by a Reporting Student who, is the survivor of sexual misconduct, these questions will be communicated to the Reporting Student via the Student Case Coordinator, unless the Reporting Student wishes to speak to them directly.

(64) The Reporting Student will be given the choice about the opportunity to talk about the impact or share their experience in a way that meets their needs or encapsulates their experience.

(65) The Reporting Student will also be offered the opportunity to provide submissions on what they would consider an appropriate finding. Any limits on the submission will be at the discretion of the Chair of the Student Misconduct Panel or Authorised Officer.

(66) The University will ensure that the Reporting Student does not receive an inadvertent penalty or is not significantly impacted by a change in their academic routine as a result of reporting the incident. For example, recommending that a Reporting Student relocate from student residences, or move classes to avoid the Responding Student.

Regular and Timely Communication

(67) Being kept well informed of the progress of the investigation and its outcome is both an aspect of natural justice principles, but also importantly it is a trauma informed approach, as providing survivors with information fosters empowerment and trust, two important pillars of a trauma informed approach.

(68) The University will ensure that multiple staff from different areas of the University do not contact the Reporting Student in relation to any case of serious student misconduct (those warranting Category 2 Sanctions) and where a Student Case Coordinator is assigned to the Reporting Student. All communication relating to the misconduct matter / report will be through the Student Case Coordinator as the single point of contact.

(69) The Student Case Coordinator will clearly communicate formal reporting process and misconduct procedures, including timeframes. The Reporting Student will be kept informed of the progress of the investigation and its outcome by the Student Case Coordinator unless they expressly request not to receive such information.

Timeframes

(70) Lengthy delays in the process contributes to the stress of victims of trauma, so it is important the University: takes prompt action when incidents occur; are reported to the Authorised Officer; and ensure such incidents are dealt with swiftly and as a priority to other cases. Every effort must be made by the University to promptly investigate and hear any allegations of sexual misconduct, unless there is a delay due to a police investigation (see relevant clauses below).

(71) The University will ensure that a formal hearing date is set down within 2 months of determining that a Student Misconduct Committee is to be formed.

(72) When forming a Student Misconduct Committee to hear an allegation of sexual misconduct, the University will ensure that Committee Members prioritise their availability so that any hearing is held as soon as possible within the timeframes outlined within Clause 10 (1) of the Rule.

(73) Any unreasonable requests by the Respondent Student for unnecessary or prolonged delays to proceedings will not be granted. The decision to grant such requests is within the sole unfettered discretion of the Chair of Student Misconduct Committee, however the Committee may seek advice from the Office of General Counsel.

Training

(74) The University will ensure that key University staff involved in aspects of managing sexual misconduct will receive appropriate training on trauma informed principles and practices.

(75) All Student Misconduct Committees investigating, hearing and deciding Sexual Misconduct matters must be chaired by a Panel member who has completed Trauma-Informed training.