All Australian universities have some form of internal disciplinary procedures (usually found in the statutes or regulations under the Act that created the university) which provide penalties for both staff and students who break university rules. There is usually a general offence of breach of discipline or misconduct. Check your university's rules for the specifics of these procedures.
Universities often make it a condition of enrolment that students agree to abide by the university rules. This is sometimes worded (in the enrolment forms) as a requirement to obey the university authorities. Note that no university authority (senior executive or security guard) can order you to do something that he or she is not empowered to do under the applicable University Act. You need not obey any unreasonable or oppressive direction.
Most universities bring misconduct allegations against students under the broad banner of ‘prejudicing good order, government and peace' at university. This means that any action that you as a student take in protest can potentially be viewed as ‘misconduct' under this dangerously broad characterisation. The law requires that there be a certain degree of certainty in a contract, and there is nothing that should preclude this standard from applying in the education context.
For example, Chapter 13 of the University of Melbourne Statute concerning student discipline provides that:
"breach of discipline or good order" includes conduct or behaviour which:
i. is lewd or obscene,
ii. impairs the ability of any person to participate in any activity of University life sanctioned by the University,
iii. unreasonably prevents or attempts to prevent any person authorised by the University to speak at any lecture, class, seminar or other academic activity, or any political, social or similar gathering,
iv. causes any person to hold reasonable fears for his or her safety or physical or psychological well-being,
v. causes any person to feel intimidated, threatened or in fear of being attacked,
vi. (for the purpose only of a direction under clause 3.7(d) of the Procedures to Resolve Sexual Harassment Complaints) breaches the University's policy against sexual harassment,
vii. breaches any provision contained in an Act of the Commonwealth or of the State of Victoria to which the University is subject, such as those relating to occupational health and safety,
viii. breaches the University's policy with respect to the use of computers and computer facilities,
ix. breaches the University's policy with respect to intellectual property,
x. interferes with, or causes damage to, or loss of, any property or facilities owned or controlled by any person whilst such property or facilities are lawfully on any premises owned or controlled by the University,
xi. constitutes a failure to comply with any lawful direction or order given in order to ensure the safety of any person, the preservation of any property or the maintenance of good order,
xii. involves the impersonation of another person or the use, whether deliberately or not, of forged, false or falsified evidence of academic standing or immigration status or any other relevant matter in order to gain or maintain enrolment,
xiii. involves concealing or withholding, whether deliberately or not, the whole or part of a student's academic record, or submitting incorrect details of his or her academic record or immigration papers or any other relevant matter, or relying on the academic record or immigration papers or any other relevant material of another person or persons, in order to gain or maintain enrolment,
xiv. is a breach of the regulation relating to assessment made under Statute 12.2.10.
Breaching the discipline and good order provisions of universities can of course have serious consequences. Again for example, Chapter 13 of the University of Melbourne Statute concerning student discipline provides that a breach of discipline and good order can, in certain circumstances, be punishable by:
- the payment of clean up costs,
- exclusion from specified University premises or facilities either permanently or for such period and on such terms and conditions as is thought fit, and
- exclusion of the student from the University either permanently or for such period as is thought fit.
Most universities have similar sanctions and powers. Universities may also have the power to withhold a degree or academic transcript unless fines or other debts outstanding have been paid.
If you are questioned by university authorities in circumstances where it is possible that disciplinary charges may be laid, you should follow the same course as if you were being questioned by the police: that is, decline to answer any questions until you have had independent advice from a lawyer about your rights. If you do not turn up to a hearing, the authority may, however, find the disciplinary charges proven in your absence.
University by-laws may also offer some protection. In particular, students charged under university rules are entitled to the benefit of the rules of natural justice. That is, you are entitled to a fair hearing and safeguards against bias on the part of the decision makers. There must be hearings procedures under administrative law, which must be procedurally fair, and appeal mechanisms, which you can use if there is an adverse finding against you.
There should be a staff and a student representative on the relevant committees, although there may be no entitlement. You may be entitled to have someone accompany you. Universities differ as to whether you can take a student advocate, friend or lawyer. The committee should be comprised of people who have no interest in the matter.
Many universities may not allow you to have your own lawyer present at hearings, but may allow a non-legal advocate from your student organisation to represent you. Some universities do not allow ‘advocates' of any nature. Questions of procedural fairness should be argued in this circumstance.
Being denied the right to independent representation when the university will have one of its own officers arguing the case against you is a breach of the principle of procedural fairness. In such circumstances, treat the hearing as an information gathering exercise - you do not have to say anything. You can obtain legal advice prior to the hearing. You may be able to negotiate the charge being dropped before the charge is heard through legal advice and representation. In practice, the Student Advocacy Services within each university provide advice and assistance in misconduct hearings.
It is important to remember that a misconduct hearing is not a court of law but an administrative body, similar to a tribunal. It cannot consider questions of law and allegations can be challenged on this basis.
University misconduct hearings are intimidating and can be punitive. In preparation for this you may consider:
- obtaining support letters about why charges should be dropped from student organisations, unions on campus and supportive staff,
- getting advice from a lawyer; the lawyer might be able to send a letter outlining how the charge/investigation contravenesnatural justice, and/or
- running a media campaign to embarrass the university.