In brief - The application of procedural fairness is pivotal for all educational institutions, regardless of whether they are a government or non-government institutions
In part 1 of this article, we looked at how procedural fairness is a difficult tightrope to master for educational institutions, how it applies in government and non-government institutions using a number of cases to illustrate, the three rules of procedural fairness, and relevant regulations in Victoria and New South Wales.
In part 2, we look at procedural fairness in universities and other tertiary institutions and review some of the more recent cases that have made it to the courts which give a flavour of the sorts of issues that tertiary institutions face. We also provide some practical advice for all educational institutions on how to adhere to the principles of procedural fairness regardless of obligation. We cover developing clear policies, documenting the complaint, training staff and top ten risk management tips.
Procedural fairness in universities and other tertiary institutions
Universities and other tertiary institutions are usually established pursuant to an Act of Parliament, and also have either subsidiary legislation or internal codes that require them to comply with the principles of procedural fairness.
For overseas students enrolled in tertiary institutions, the National Code of Practice 2007, enacted under the Educational Services for Overseas Students Act 2000 (Cth) provides specifically for the application of principles of procedural fairness in treatment of overseas students. Standard 8 in the National Code provides procedures for handling complaints and appeals which, as well as setting out key requirements that accord with the principles of procedural fairness, specifically records that:
Tertiary institutions face more complaints and more litigation than schools
For whatever reason, universities and other tertiary institutions tend to face a higher level of complaints of lack of procedural fairness than schools, particularly around higher studies students, access or otherwise to higher studies such as PhD courses, and alleged discriminatory treatment. They also tend to be more litigious.
A review of some of the more recent cases that have made it to the courts give a flavour of the sorts of issues that tertiary institutions face.
Exclusion of student on grounds of disruption found invalid
In the case of Durney v Victoria University  VSC 161, Mr Durney was a law student who had made, over the course of four years, a series of complaints regarding noise in the law library, while at the same time creating disturbances himself, for example shouting, suicide threats and attempts to kill himself.
It culminated in the decision of the Dean of the Law Facility to exclude Mr Durney from the university, while affording him the facilities to sit his exams elsewhere. The decision to exclude Mr Durney was based, in large part, on two incidents that occurred in October 2012.
In the first incident, Mr Durney caused a disturbance outside the law school, shouting and placing a bag on his head, and in the second he shouted outside the law library, placed a bag on his head and a noose around his neck. Mr Durney was not aware, prior to the making of that decision, that the university would rely on the two October incidents. The university also relied on other internal material which was not provided to Mr Durney.
Student not given opportunity to deal with relevant matters adverse to his interests
This is an example of a breach of the "hearing rule". The court held that the individual who is the subject of a complaint must be given the opportunity to deal with the relevant matters adverse to his interests, being "adverse information that is credible, relevant and significant to the decision made", subject always to issues of confidentiality regarding that information. The phrase "credible, relevant and significant" refers to information that cannot be dismissed from further consideration by the decision maker.
The court held that Mr Durney should have been provided with information in relation to the two October 2012 incidents, the further documents held by the university, and the inconsistencies in his behaviour, and given the opportunity to respond. However, he was only required to be given the material critical to the decision.
Decision makers must follow a two-step process
As we discuss further below, this means that decision makers must follow a two-step process:
- what is the "credible, relevant and significant" information that is a critical part of the decision; and
- before that decision is made final, has that information been given to the respondent?
This also raises the issues of bias. If that information is not provided to the respondent, can the decision maker really assert that they would simply shut that information out of their mind and not rely upon it?
The university also argued against the court providing the relief sought by Mr Durney (which was to set aside the decision of the university) on the grounds of the futility of that relief, in that the university would make the same decision in any event (i.e. if it were to decide again).
The court held that, while the futility of the relief sought can be a grounds for refusing relief, here one could not say that the decision would be the same in any event. Reasons relied upon by the court in this regard included the fact that Mr Durney was a litigant in person and he may have sought legal advice, and further he may have put on medical evidence regarding his condition.
The court held that there was a denial of procedural fairness as the decision to exclude Mr Durney was based on a number of documents and the two October incidents, none of which were ever put to Mr Durney, and he therefore had no opportunity to respond to them.
Given how important the October incidents were, featuring prominently in the exclusion decision, and clearly given weight by the university when it made the exclusion decision, this was a denial of the requirements of procedural fairness. The court commented:
The court declared that the exclusion decision was invalid and of no effect. Costs orders were made against the university.
As a postscript to this case, in the period between deciding to exclude Mr Durney and the court hearing, the university changed its governance legislation to allow it to refuse to enrol, or to suspend or exclude students, on grounds including emotional disturbance or health risks to themselves or others.
Lack of a fair hearing, bias on the part of a decision maker
Mr X was a medical student at the University of Western Sydney. Mr X and a female student attended a party during which there was an incident between them of a sexual nature, and subsequently a Facebook exchange which may have suggested that the incident was consensual. However, the female student then met with the Dean of Medicine and lodged a complaint of non-consensual sexual contact and subsequently went to the police.
Nine days following that meeting, Mr X was called into the Dean of Medicine, and read a letter informing him that he had been suspended from the faculty. Mr X brought court proceedings on an urgent basis, which was the decision heard in August 2013 ( X v University of Western Sydney (No 3)  NSWSC 1329).
In the first case, the Supreme Court held that the university's decision was a breach of procedural fairness and was not valid and of no effect for reasons including:
- Mr X was not told of the facts relied upon by the university in making its decision (ie, the credible, relevant and significant evidence)
- He was not given the opportunity to respond, including regarding the impact of suspending him; and
- Had he been afforded the opportunity, he may have identified alternatives to suspension.
Mr X reinstated as student but suspended again following review of the matter
Therefore, Mr X was reinstated as a student in the Faculty of Medicine. In October 2013, an Interim Pro Vice Chancellor (decision maker) was appointed to review the matter, the Vice Chancellor having recused himself on the grounds of apprehension of bias, following concerns raised in this regard by Mr X.
The decision maker reviewed the materials including affidavits filed in the first proceedings commenced by Mr X and met twice with Mr X and his lawyers. He then determined to suspend Mr X. Mr X sought judicial review of that decision.
The relevant events leading up to the decision were as follows:
- Critical to the decision maker's thought processes was whether there was a real adverse risk to the complainant's mental well being if Mr X were to remain on campus.
- Arrangements were made to try and segregate Mr X and the complainant.
- The decision maker met on two occasions with Mr X and his lawyers, who sought details of the issues and evidence the decision maker would rely upon. The lawyers also indicated that a psychiatrist's report would be provided.
- However, before receiving that psychiatrist's report, the decision maker sent a text to the Vice Chancellor saying that he had determined to suspend Mr X. He had, at the time of sending that text, no direct communication with the complainant regarding the potential adverse impact on her of Mr X remaining on campus. He had received views from others regarding what she felt about this, but that was hearsay evidence only.
- Following sending the text message, the decision maker received the psychiatrist's report foreshadowed by Mr X's lawyer, which stated that, while it was "conceivable" that the complainant may feel uncomfortable having Mr X on campus, there was no evidence of risk.
- The decision maker then interviewed the complainant, who informed him of her anxiety, inability to concentrate, counselling she was obtaining and the fact that she was unlikely to attend university if she saw Mr X.
The information provided by the complainant in that meeting was central to the decision to exclude Mr X. The decision maker did not provide this information to either Mr X or his lawyer, nor were they given the opportunity to respond.
Mr X brings second proceeding seeking judicial review of decision
Mr X then brought a second proceeding in the Supreme Court of New South Wales ( X v University of Western Sydney  NSWSC 82), seeking judicial review of the decision maker's decision. The grounds relied upon by Mr X were that he:
- had not received all the information relied upon by the decision maker
- did not know in particular what was relied upon to establish the risks to the complainant if he stayed on campus
- therefore did not know the case he was to meet or how he should respond
- it was possible that there were arrangements that could be made to segregate them and in fact arrangements had been put in place which he understood had been working
Mr X also asserted that the university erred in its application of the University's Misconduct Policy regarding elimination of perceived risks to health and safety of students, the determination to suspend Mr X was made having regard to an "improper purpose" and the decision to suspend him was "manifestly unreasonable, unjust and/or illogical".
The university submitted that it was only obliged to disclose critical, relevant information which was not apparent from its nature, and as Mr X knew of his potential impact on the complainant, there was no obligation to provide the information obtained from her in the meeting. The university said that all the interview did was confirm the hearsay evidence.
Court holds that there was a breach of procedural fairness
After hearing detailed arguments over at least five days, the court held that the determination to suspend Mr X was a breach of procedural fairness.
Of particular concern was the lack of provision of determinative material to Mr X, or the opportunity to make submissions on that material. The court commented:
Mr X had also argued apprehended bias on the part of the decision maker. This was rejected by the court which commented that the decision maker must have an open mind, not an empty one.
Educational institution's obligation of procedural fairness does not end when the internal investigation and complaints procedure ends
In the case of Rana v University of Adelaide  SASC 85, Mr Rana was a law student at the University of Adelaide, who was excluded from first the Law Libraries and then subsequently the university in its entirety, the reasons for which did not emerge from the judgment.
This matter involved an application by Mr Rana for leave to appeal an earlier decision of the Supreme Court of South Australia striking out his case. One of the grounds of appeal was that the university breached the requirements of procedural fairness in failing to provide an outline of the submissions they made in court on the hearing of an application to strike out Mr Rana's substantive proceeding.
We raise this case only to note that, while the court found it unnecessary to consider this issue to determine the appeal, it did note that there could be situations in which the failure of the university to provide their submissions to Mr Rana in advance of the hearing could have been a breach of procedural fairness. The point to take away is that the obligation of procedural fairness does not end when the educational institution's internal investigation and complaints procedure ends.
Disgruntled student prepared to take matters far
Wecker v University of Technology Sydney  NSWSC 927 is an example of another proceeding emerging from a decision to suspend or exclude a student. Mr Wecker was a graduate student at UTS who, following a dispute with the UTS' Housing Office regarding student accommodation, threatened (and admitted threatening) the Housing Officer saying words to the effect either "I could get you and your manager killed" or "I have the power to kill you and your boss, it will be done". Subsequently, the university suspended Mr Wecker for 12 months.
Mr Wecker then made a complaint, alleging among other things, lack of procedural fairness against the university to the President of the Anti-Discrimination Board (which was declined as lacking in substance), sought and was granted leave to proceed in the Administrative Decisions Tribunal (which complaint was dismissed), then appealed that decision to the Appeal Panel (which again dismissed the application) and then finally appealed to the Supreme Court of New South Wales.
The decision turned ultimately on issues other than procedural fairness, but the case is interesting as an example of how far a disgruntled student will take matters. A somewhat common theme in cases of this kind is that allegations of lack of procedural fairness are often run alongside the main allegations, for example, in this case, arguments of discrimination in breach of the Anti-Discrimination Act 1977 (NSW) in allegedly taking into account in determining to suspend Mr Wecker that the university considered that he suffered from a psychiatric illness.
Court finds no basis for denial of procedural fairness claim by student unhappy with marks
In the case of Chan v Louey & Ors  NSWSC 605, Mr Chan was a student with TAFE, studying the "Develop and apply knowledge of the library/information services industries" course and was informed that he had failed the first of the assessments required to complete the course.
The day after being informed that he had failed, and without availing himself of the appeal procedures afforded him by TAFE, Mr Chan commenced proceedings in the Supreme Court of New South Wales against the part-time teacher teaching the course in question. TAFE was subsequently joined as a defendant. Among other things, Mr Chan asserted denial of procedural fairness and fraud/improper purpose. The court rejected Mr Chan's application noting:
Student pursues claim all the way to the High Court
Griffith University v Tang  HCA 7 is another example of a claim brought by a student after being found guilty of engaging in serious misconduct. Ms Tang, a PhD student, had apparently undertaken research without regard to ethical and scientific standards and thus engaged in "academic misconduct". As a result, Ms Tang was excluded from her PhD candidature. This matter is another example of how far through the courts claimants will take matters.
Ms Tang first appealed against the decision to exclude her to the University Appeals Committee. The Committee upheld the decision, and Ms Tang then sought judicial review from the Supreme Court of Queensland.
A key issue was whether the decision that had been made to exclude Ms Tang was a decision made "under an enactment" pursuant to the Judicial Review Act 1991 (QLD), thus giving the court jurisdiction to hear the claim for judicial review. This issue went on through the Court of Queensland, the Court of Appeal of the Supreme Court of Queensland and then, finally, on to the High Court of Australia.
The High Court ultimately decided that, in order for the decision to exclude Ms Tang to be a decision "under an enactment" and therefore subject to judicial review, it had to be a decision expressly or impliedly required or authorised by the enactment and one that must itself confer, alter or otherwise affect existing or new legal rights or obligations derived from the general law of statute.
The decision to exclude Ms Tang from the PhD course was not made "under an enactment" and, therefore, judicial review of the decision was not possible. As a result, Ms Tang's efforts to have her candidature reinstated ended at the High Court.
Best to adhere to procedural fairness principles regardless of obligation
Most educational institutions, in dealing with complaints made by students or disciplinary issues in respect of students, will be subject to principles of procedural fairness. Even if they are not expressly applied (for example, in the case of non-government schools) it is prudent, in dealing with these types of matters, to adhere as far as possible to the principles of procedural fairness.
Develop clear policies for students and staff
Bearing in mind in particular the right to a fair hearing, and the need for the absence of bias or the appearance of bias, it is clear that educational institutions (both schools and tertiary) should have clear policies for dealing with both students and staff that, in particular:
- identify the nature of the complaint
- allow for the complaints-handling process to be clearly communicated
- incorporate a defined and fair investigation phase that involves not just the gathering of information but the provision of that information to the student
- consider a two-stage hearing phase:
- identify the relevant, credible, and significant information central to or determinative of the likely decision
- ensure that this information has been put to the student and they have been afforded the opportunity to respond
- the exception is if there are confidentiality issues, or other reasons why it must not be disclosed (eg Police request, protected confidences)
- then move to make the final decision
- give careful thought to the appropriate decision maker to address the issue of actual or potential bias:
- consider a decision maker at least one step removed from the student;
- but remember that an open mind does not mean an empty one (do not be afraid to make the decision!)
- record the reasons for the decision in writing and, where possible unless there are compelling reasons to the contrary, communicated to the student, together with details of the appeal process
Document all stages of the process
A key point to consider is the need to document the process. Should the student dispute the process (and the case examples have given show this happens, and in universities appears to happen quite regularly) it will be necessary to have a "paper trail" to evidence that the above steps have taken place. Further, if the matter goes to court, the documents will need to be provided to the other party and the court on discovery.
Keep documents centralised and consider document management and destruction policies
We suggest that in each case, you determine who, will be responsible for keeping in one centralised location all the documents, memos, emails and other communications in relation to the complaint (including, as in the case brought by Mr X, the critical text messages). The need to retain these materials should also be built in to email and document management and destruction policies.
Ensure ongoing training of staff on disciplinary processes
Another practical tip is to ensure that staff are appropriately trained in the disciplinary processes and procedures as well as the requirement of, and means of achieving, procedural fairness in the institution's processes. This should not be in a one-off training session but regularly reinforced to staff in updating training sessions.
Ten top procedural fairness risk management tips
- Inform the student of the allegations.
- Inform the student of the likely consequences of an adverse decision and why a particular decision would be appropriate.
- Let the student be heard - in an interview and, if appropriate, by way of a written response.
- Consider all relevant evidence before making a decision. Identify the relevant, credible, and significant information - has the student seen it and had an opportunity to respond? Are there confidentiality issues?
- Provide all details of the decision in writing and provide a copy of the relevant documents (eg, policies and procedures on which the action is based).
- Have an independent investigator and separate decision maker.
- Ensure the decision maker acts fairly and without bias.
- Question whether others would see the process as being fair, valid and reasonable.
- Consider whether the student would have an appeal process available to them and what they may appeal about.
- Document all action, discussions, investigations, meetings and decisions.
Aim to strike a balance between providing procedural fairness to all students and maintaining educational imperatives
As educational institutions are likely to continue to see activist parents and disgruntled students in the years to come, the application of procedural fairness is pivotal for all educational institutions, regardless of whether they are government or non-government institutions.
It is simply not enough for an educational institution to acknowledge that a policy is based on the principles of procedural fairness. Educational institutions need to "walk the tight rope" in striking the delicate balance between providing procedural fairness to all students and maintaining the educational imperatives.
|Amanda Ryding||Natalie Bodak|
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.