'Legal Challenges to University Decisions Affecting Students in Australian Courts and Tribunals' by Patty Kamvounias and Sally Varnham in (2010) 34(1)
Melbourne University Law Review 140 comments that
In an era of increased accountability, decisions that adversely affect university students are more open to internal and judicial scrutiny. This article considers student challenges to university decisions in the context of universities as public bodies. It begins with extrajudicial processes such as the University Visitor, parliamentary Ombudsmen and internal university Ombudsmen. It then provides a comprehensive analysis of litigation in Australia between students and universities in which students have challenged decisions about admission, course content, assessment, academic progress and both academic and non-academic misconduct. Australian courts and tribunals have accepted jurisdiction in certain circumstances but student–university litigation has generally been unsuccessful for the students either on technical jurisdictional grounds or on the facts. Judicial consideration of university decisions and administrative processes has provided some guidance that may assist in the formulation of improved internal processes, particularly relating to the resolution of complaints and appeals. This article argues that the diverse range of courts and tribunals currently used by students are inappropriate and inefficient and considers whether the time is right for serious consideration to be given to the establishment of a dedicated dispute resolution body for the Australian higher education sector.
The authors note that
The question of how, where and to whom students may challenge university decisions is a vexed one. Ideally, all such matters should be resolved by internal processes and procedures but this is not always the case. Originally the function rested with the University Visitor. Now, in the states where the office of the University Visitor survives, its role is ceremonial only. How then may this gap be filled? Are any of the paths currently taken by students effective, efficient or appropriate in light of the unique nature of the relationship between students and their universities? If they are not, what would be a solution? Historically, students rarely challenged adverse academic or disciplinary decisions outside their universities; however, recent empirical research has found that recourse to courts and tribunals by Australian university students is increasing and that students’ main concerns are about the fairness of university decision-making.
Parliamentary Ombudsmen have also reported an increase in university students seeking their assistance. The previous lack of students seeking external recourse may have been due to the existence of the University Visitor and for other reasons including ‘satisfaction with internal processes, an inclination to settle matters within the community, the costs of litigation, judicial deference to university decisions, and cultural attitude’.
There can be no doubt that the higher education climate has changed markedly, particularly in the last decade, and that the resolution of student grievances has become a key focus in Australia and elsewhere. As students increasingly seek external redress, questions such as the nature of the legal relationship between the university and the student are being explored. This article begins with a discussion of the jurisdictional issues arising from the public nature of Australian universities. It considers the demise of the function of the University Visitor and points to the current extrajudicial avenues for the resolution of student grievances — the parliamentary Ombudsmen and the internal university student Ombudsmen.
What follows is a comprehensive review and analysis of recent student litigation in Australia. The focus is on legal proceedings in which students have challenged all manner of decisions, including those relating to admission, course content, assessment, academic progress and misconduct. This consideration encompasses the wide range of issues which have arisen in federal and state courts and tribunals, relating to the different types of university decisions and different types of allegations against the universities concerned. With the exception of only a few successes by students in gaining access to information affecting their academic progress, the case law in this area documents a series of failed proceedings for the students concerned. The almost universal lack of success is either on technical grounds or on the facts. It is clear that litigation is not working for students. Neither can it be working for universities in terms of time, money and energy expended on fighting such claims in the courts. Now is surely the time for serious consideration to be given to an alternative approach such as an Ombudsman with a function specially dedicated to the resolution of student–university grievances.
They go on to state that
As with adverse decisions about academic progress, decisions involving academic misconduct can also have consequences beyond the university. A series of recent cases highlights the importance of full disclosure by those seeking admission to legal practice of allegations or findings of academic misconduct and plagiarism in relation to university assessments.
Courts in Australia and elsewhere have drawn a clear distinction between matters of academic judgment (which courts will generally not review) and matters of academic misconduct (which courts will generally review):
as Maurice Kay J explained in R v University of Cambridge; Ex parte Persaud … it is entirely ‘correct’ of courts ‘to distinguish between the disciplinary type of case and the situation where what is in issue is pure academic judgment’ … Academic judgment is one thing. But where an individual who has the requisite interest is affected by disciplinary decisions of an administrative nature made by a university body acting according to its powers under a statute, outside the few categories peculiar to ‘pure academic judgment’, such decisions are susceptible to judicial review. They are so elsewhere. They should likewise be so in Australia. An appeal to ‘academic judgment’ does not smother the duties of a university, like any other statutory body, to exhibit, in such cases, the basic requirements of procedural fairness implicit in their creation by public statute and receipt of public funds from the pockets of the people.
Because of the way matters had proceeded in Griffith University v Tang, no court had had the opportunity to examine the substance of Vivian Tang’s complaint about the decision to exclude her from her PhD candidature for academic misconduct. In essence, her complaints were: that the Chair of the University’s Assessment Board was not impartial as he was the person who had initially investigated the complaint against her; that she had been denied legal representation and adequate time to evaluate and respond to expert witnesses relied on by the University; that the University had breached its own policy; and that the decisions were not based on relevant material and evidence. Tang may or may not have been able to substantiate any of these complaints, but the High Court ended any opportunity of her doing so by holding that the QJR Act did not apply in the circumstances. Aronson has commented that ‘there was undoubtedly a real dispute between the parties as to whether the University had adhered to its misconduct code. That would probably have been a sufficient basis for an application to a State Supreme Court for declaratory relief’.
Unfortunately, the question of whether Tang would be entitled to relief under the common law, pursuant to the powers of the Supreme Court of Queensland, or otherwise, did not arise because she had relied solely on the statutory procedures and sought only the statutory remedies provided by the QJR Act.
There have been cases, however, where the courts have had the opportunity to consider student complaints about decisions involving academic misconduct. In these cases the courts have consistently and universally insisted on strict adherence to accepted administrative law principles, for example, regarding the proper constitution of decision-making committees and the absence of bias, the need to follow proper procedure and comply with natural justice, and the need to reach decisions that take into account all relevant matters, and that are not contrary to law.
A recent case illustrates the requirements of procedural fairness in these circumstances. Sherrie Tadros was undertaking a Bachelor of Pharmacy at Charles Sturt University that she had anticipated completing by the end of 2008. In 2007, she enrolled in the pharmacy practice subject which required her to complete practical work experience. However, in October that year, she advised one of her professors that she had not done the placement and admitted that the documents she submitted as evidence of completion of this work were false. The matter was referred to the Head of School who conducted an inquiry and recommended that the Acting Dean recommend to the Deputy Vice-Chancellor (Academic) that Tadros be failed in the subject and be excluded from the University for two years. The Acting Dean made the recommendation and the Deputy Vice-Chancellor (Academic) then wrote to Tadros in November 2007 stating that she had been found guilty of academic misconduct and consequently failed in the pharmacy practice subject and excluded from the University for two years, and, should she wish to resume her studies after the period of exclusion, she would have to apply for admission as if she were a new applicant. Tadros lodged an appeal against the severity of the penalty imposed under the University’s policy on student academic misconduct, but she was initially advised that her appeal would not be heard because the policy only allowed appeals on procedural grounds. She then commenced legal proceedings, but before the matter was heard by the Court, the University arranged for her appeal to be heard by the Academic Misconduct Appeals Committee, which upheld the penalty, deciding it was lenient rather than severe.
There was no issue before the Court as to its jurisdiction to intervene or as to Tadros’ guilt of serious academic misconduct. The key issues before the Court were the correct construction of the academic misconduct policy and the requirements of procedural fairness. The Court commented that: ‘It would be of advantage to amend the Policy to make the procedure clearer where the academic misconduct has been admitted’ as they were ‘less than explicit and apt’ and ‘[c]ommon fairness required that the University take into account that the student admitted the misconduct alleged.’ The Court noted that after Tadros’ conversation with her professor, she was not notified of any investigation or deliberation by the University and was not advised of the recommendations as to penalty made by the Head of School and the Dean. In the circumstances, this was held to be a denial of procedural fairness because a penalty had been imposed without giving the applicant the opportunity to make submissions, and so the University decisions were declared void.
Having the University’s decision declared void by a court does not prevent the University dealing further with the matter. If the University did revisit the decision, it would have to give Tadros the opportunity to make submissions as to penalty, but, in considering the matter afresh, it would be for the University to decide whether the same penalty or a lesser penalty should be imposed.
It is therefore clear that university rules and processes on student misconduct need to be carefully drafted to ensure procedural fairness in all situations, as the courts will insist on this and can declare decisions made pursuant to unfair processes void. The cases clearly illustrate that if decisions about academic misconduct are made in accordance with general administrative law principles and fairness, then students will find little comfort in the courts.
In Lam v The University of Sydney, a student enrolled in the second academic year in the Faculty of Medicine came before a Student Proctorial Board on charges of misconduct under the University by-laws. It was alleged that he offered a sum of money to an administrative assistant employed by the University for information regarding the contents of the histology examination paper he was due to sit. The Board found the charges had been established and ordered that Lam be expelled from the University. However, it also recommended that he should be permitted to apply for readmission after four years, provided he satisfied the University that since his expulsion he had been a person of good character and was fit and proper to be readmitted.
Lam was legally represented before the Board and also before the Appeals Committee of the Senate, which dismissed his appeal from the Board’s decision. Lam then made an application to the Vice-Chancellor seeking his recommendation to the University Senate that the adverse finding against him be quashed on the basis of fresh alibi evidence. The Vice-Chancellor declined to make this recommendation and it was this decision that Lam challenged in the courts on the basis of denial of natural justice. Gleeson CJ noted that by the time the matter had come to the Vice-Chancellor, there had already been a full hearing involving oral evidence and argument before the Board and a full appeal conducted on the basis of written submissions before the Appeals Committee. There was no adequate explanation as to why the alibi evidence had not been presented at those times. Essentially, the Vice-Chancellor was being asked to exercise a discretion in favour of the student. The New South Wales Court of Appeal held that given the background of the matter, the nature of the function he was exercising and the grounds on which he was being asked to intervene, it had not been shown that the Vice-Chancellor had departed from the requirements of procedural fairness, and so the appeal was dismissed.
Simjanoski v La Trobe University arose because coordinators in a maths and an engineering subject alleged that several students had access to the solutions papers for the exams. This allegation was based on the students’ examination answers and their past performances in the subjects and was supported by the fact that the students had reproduced the errors from the solutions paper. The chief examiner wrote to each of the students and invited them to respond to an allegation of academic misconduct. The students provided written responses and the matter was referred to the Academic Misconduct Committee of the Faculty of Science, Technology and Engineering as required by the University regulations on student discipline and misconduct. That Committee found that the students had committed an act of academic misconduct and each was given a zero grade for each subject and excluded from the University for a period of time. When the students’ internal appeal was heard and dismissed by the Reserve Proctorial Board, the students commenced proceedings in the Supreme Court of Victoria seeking judicial review of the decisions of the Committee and the Board.
Balmford J concentrated on whether the students’ claims of lack of procedural fairness had been proven on the facts. Counsel for the student plaintiffs first argued that the Board’s role was purely judicial and that it was improper for it to take on an inquisitorial role and treat the chief examiners as mere witnesses instead of prosecutors. Secondly, it was argued that the presence on the Board of an expert in mathematics was inappropriate. Thirdly, the decision was challenged on the ground of apprehended bias as a member of the Board and a person who was giving evidence obtained coffee together and engaged in conversation during a break in the hearing. The Supreme Court found against the students on all these arguments. Her Honour noted that, according to the relevant University regulations, the Board could follow any procedure it considered appropriate, and found that it had acted fairly to all parties in the manner in which it had dealt with the claims, that its fairness was not compromised by the presence of an expert on the disciplinary tribunal, and that no imputation of bias could be drawn in the circumstances by the ‘fair minded lay observer’. Accordingly, the students’ application for review was dismissed. Leave to appeal was refused by the Court of Appeal.
