The misconduct appeal must identify a “Question of Law”. You need to meet this threshold for your appeal to be reviewed. Any appeal that does not meet this threshold could be rejected.
According to Curtin’s Student Conduct Guide (Academic Misconduct Rules 4.3(4)), examples of points of law include:
- Procedural Fairness (e.g. a piece of evidence was not considered, you were not given a right to respond to the allegations, the Authorised Officer did not act in accordance with the Rules);
- When making a decision in a matter, irrelevant considerations were taken into account;
- Failure to take into account [relevant] considerations in making a decision; or
- No evidence or material to support the decision.
In summary, an appeal will not be granted purely on the basis that you are not happy with the decision or if you have personal circumstances that impacted on you. Your appeal has to be based on if you have evidence that the University did not follow its own misconduct rules.
What are relevant and irrelevant considerations?
The definition of relevant and irrelevant considerations comes from Australian civil law.
In the case of the High Court of Australia in Minister for Aboriginal Affairs v Peko Wallsend (1968) 162 CLR 24, “The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision.”
This means that the law says there are a limited number of factors that the Student Discipline Panel can take into consideration when making a decision on what is relevant considerations.
For Academic Misconduct cases, the only relevant considerations that the Student Discipline Panel are bound to consider are covered by clauses 2.6 (3) and 2.7 (4) of the Academic Misconduct Rules:
2.6 (3) In respect of the Respondent Student's opportunity to respond –
(a) the Respondent Student must be given an opportunity to respond to the Allegation in writing;
(b) when permitted by the Inquiry Officer, the Respondent Student may be given an opportunity to respond orally;
(c) the Inquiry Officer must specify a date (and may extend the date) for the Respondent Student's response that is at least 7 days after the Respondent Student has been given the information referred to in subrule (2)(a);
(d) if the Respondent Student does not take up the opportunity to respond the Inquiry Officer, in the absence of that response, may make a recommendation as to whether Academic Misconduct has occurred;
(e) a written response from the Respondent Student may comprise or include written statements from themselves, or any other person; and
(f) the Inquiry Officer must give due consideration to any response by the Respondent Student made under this subrule (3).
2.7 (4) The factors to be taken into account in assessing the seriousness of Academic Misconduct in a particular case include –
(a) the extent to which the behaviour was planned or deliberate;
(b) the degree of advantage gained or potentially gained;
(c) the potential disadvantage to other Students;
(d) the potential negative impact on the University; and
(e) the importance of taking clear and decisive action in relation to the matter.
For General Misconduct cases, the only relevant considerations that the Student Discipline Panel are bound to consider are covered by clauses 2.4 (3) and 2.5 (4) of the Academic Misconduct Rules:
2.4 (3) In respect of the Respondent Student's opportunity to respond –
(a) the Respondent Student must be given an opportunity to respond to the Allegation in writing;
(b) when permitted by the Inquiry Officer, the Respondent Student may be given an opportunity to respond orally;
(c) the Inquiry Officer must specify a date (and may extend the date) for the Respondent Student's response that is at least 7 days after the Respondent Student has been given the information and any documents referred to in subrule (2)(a);
(d) if the Respondent Student does not take up the opportunity to respond, the Inquiry Officer, in the absence of that response, may make a recommendation as to whether General Misconduct has occurred; and
(e) a written response from the Respondent Student may comprise or include written statements from himself or herself, or any other person.
2.5 (4) The factors to be taken into account in assessing the seriousness of General Misconduct in a particular case include –
(a) the extent to which the behaviour was planned or deliberate;
(b) the degree of advantage gained or potentially gained;
(c) the potential disadvantage to other Students;
(d) the potential negative impact on the University; and
(e) the importance of taking clear and decisive action in relation to the matter.
Any other considerations during the appeal process are irrelevant. This includes things such as personal circumstances which may have been impacting you at the time of your misconduct. You have the opportunity to mention these circumstances in your first response to the allegation. For example, if you were unwell and made the choice to plagiarise part of your assessment to save time, the fact that you were unwell is not a relevant consideration – i.e. you still made the choice to plagiarise, and plagiarism is misconduct. A decision to commit academic misconduct is always within your control.
Identifying Points of Law
We encourage you to scrutinise all the documents including the reports that were sent to you. Check that clause 4.3(4) of the Academic Misconduct Rules have been followed. Things to look for include:
- There was a failure to comply with the principles of procedural fairness,
- An irrelevant consideration was taken into account in making the decision,
- There was a failure to take into account a relevant consideration in making the decision, or
- There was no evidence or other material to justify the making of the decision
If any one of these have not been followed, state very clearly which clause has been breached and provide evidence to support your argument.
Outcomes of an appeal
Identifying a question of law may lead to the determination and/or penalty of misconduct being reconsidered. It may not remove the allegation.
For example, the error in process which you identified may be so insignificant that it may not materially affect the determination and/ or the penalty applied. In this case, the investigate will re-open and you get another opportunity to respond. The original determination may be upheld at the conclusion of the re-investigation.