Federal Register of Legislation - Australian Government

Primary content

Appeals Rule 2018

Authoritative Version
Rules/Other as made
This rule defines reviewable decisions and establishes criteria and procedures for the hearing of applications for a review of a reviewable decision.
Administered by: Education and Training
Exempt from sunsetting by the Legislation (Exemptions and Other Matters) Regulation 2015 s12 item 09
Made 19 Mar 2018
Registered 20 Mar 2018
Tabled HR 26 Mar 2018
Tabled Senate 22 Mar 2018
Table of contents.

THE AUSTRALIAN NATIONAL UNIVERSITy

Appeals Rule 2018

 

I, Professor Brian P. Schmidt, Vice-Chancellor, make the following rule.

Dated 19 March 2018

Professor Brian P. Schmidt AC FAA FRS

Vice-Chancellor

 

 


Contents

Part 1— Preliminary. 1

1                 Name. 1

2                 Commencement 1

3                 Authority. 1

4                 Definitions. 1

Part 2— Reviewable decisions. 2

5                 Meaning of reviewable decision. 2

6                 Discipline decisions. 2

7                 Academic misconduct decisions. 2

Part 3— Grounds for review.. 3

8                 Grounds for review.. 3

Part 4— Making application for review.. 4

9                 Affected person may make application for review.. 4

Part 5— Consequences of making application for review.. 5

10               Application for review by student whose enrolment has been terminated. 5

11               Application for review by student who has been excluded or denied access. 5

Part 6— Preliminary consideration of applications. 6

12               Rejection of invalid applications. 6

13               Referral of application to Appeals Committee. 6

14               Interim measures by Vice-Chancellor 6

Part 7— Appointment of Appeals Committee. 7

15               Appeals Panel 7

16               Appeals Committee. 7

Part 8— Consideration by Appeals Committee. 8

17               Additional material 8

18               Material to be provided to student 8

19               Notification of hearing etc. 8

20               Decision whether to conduct oral hearing. 8

21               Applications for review relating only to penalty or other action taken. 8

22               Hearing procedure. 9

23               Student’s rights on review.. 9

24               Non-appearance before Appeals Committee. 10

25               Decision by Appeals Committee. 10

26               Undertaking by student 11

27               Decision final 11

Part 9— Miscellaneous. 12

28               Nominees for Vice-Chancellor and Registrar 12

29               Certain functions not to be exercised personally by original decision-maker 12

30               Extension of time. 12

31               Service of notices etc. 12

32               Repeal etc. 13

33               Transitional 13

 


Part 1—Preliminary

1          Name

This is the Appeals Rule 2018.

2          Commencement

This instrument commences on the day after it is registered.

3          Authority

This instrument is made under the Appeals Statute 2014, section 3.

4          Definitions

In this instrument:

Academic Board means the Academic Board established under the Academic Board Statute.

academic misconduct decision: see section 7 (Academic misconduct decisions).

Appeals Committee means an Appeals Committee appointed under section 16 (Appeals Committee).

discipline decision: see section 6 (Discipline decisions).

exercise a function includes perform the function.

function includes authority, duty and power.

reviewable decision: see section 5 (Meaning of reviewable decision).

Secretary, to an Appeals Committee, means the person appointed as Secretary to the Appeals Committee under section 16(5) (Appeals Committee).

student:

                                           (a)    means any person who is or was enrolled in, or seeking enrolment in, a program or a course offered by the University, or who is or has been given permission by the University to audit a course offered by the University; and
                                          (b)    in Part 8 (Consideration by Appeals Committee), includes a person who is the applicant in relation to the application for review.

working day means a day that is not a Saturday, a Sunday, a public holiday in the Australian Capital Territory, or a University holiday.

Part 2—Reviewable decisions

5          Meaning of reviewable decision

A decision is a reviewable decision under this instrument if it is:

                                           (a)    a discipline decision; or
                                          (b)    an academic misconduct decision.

6          Discipline decisions

A decision is a discipline decision if it is declared to be a reviewable decision by the Discipline Rule.

7          Academic misconduct decisions

A decision is an academic misconduct decision if it is declared to be a reviewable decision by the Academic Misconduct Rule.

Part 3—Grounds for review

8          Grounds for review

                    (1)    An application by a person for review of a decision must be made on 1 or more of the following grounds:

                                           (a)    that a procedural irregularity happened that may have affected the decision by the decision-maker;
                                          (b)    that the decision-maker was biased;
                                           (c)    that the decision was manifestly wrong;
                                          (d)    that the decision was made in a mistaken application of the applicable rules;
                                           (e)    that there is substantial relevant evidence that:
                                                           (i)    was not taken into account by the decision-maker; and
                                                         (ii)    could not have been known to the person and provided to the decision-maker before the decision was made;
                                           (f)    that a penalty imposed on the person, or any other action taken in relation to the person, under the Academic Misconduct Rule or Discipline Rule was manifestly excessive.

                    (2)    If an application for review includes the ground mentioned in subsection (1)(f), the penalty or other action is taken to form part of the decision for this instrument.

Part 4—Making application for review

9          Affected person may make application for review

                    (1)    A person may make an application for review of a decision if:

                                           (a)    the decision is a reviewable decision affecting the person in the person’s capacity as a student; and
                                          (b)    the application is made within 20 working days after the day the person is notified of the decision or within any further period allowed under section 30 (Extension of time).

                    (2)    The application must:

                                           (a)    specify the grounds on which the person relies; and
                                          (b)    be given to the Registrar.

Part 5—Consequences of making application for review

10      Application for review by student whose enrolment has been terminated

The termination of a student’s enrolment does not take effect until any application for review in relation to the relevant decision has been finally decided.

11      Application for review by student who has been excluded or denied access

The exclusion of a student, or denial of access to facilities, premises or activities of the University, under the Academic Misconduct Rule or the Discipline Rule continues to have effect even though an application has been made for review of the relevant decision.

Part 6—Preliminary consideration of applications

12      Rejection of invalid applications

                    (1)    The Registrar may reject an application for review of a decision if it appears:

                                           (a)    that the application does not relate to a reviewable decision; or
                                          (b)    that the application does not set out 1 or more grounds required by this instrument; or
                                           (c)    that the application has not been made within the time required by this instrument.

                    (2)    However, the Registrar may reject the application only if the Registrar has given the applicant an opportunity to make a written submission in relation to the proposed decision.

                    (3)    If the Registrar rejects the application under this section, the Registrar must, as soon as is practical:

                                           (a)    tell the applicant and the decision-maker in writing about the decision; and
                                          (b)    give them a written statement of reasons for the decision.

13      Referral of application to Appeals Committee

Subject to section 12 (Rejection of invalid applications), if it appears to the Registrar that an application for review relates to a reviewable decision, the Registrar refer the application to an Appeals Committee.

14      Interim measures by Vice-Chancellor

If an application for review is made by a student whose candidature or enrolment in a program or course has been terminated because of the decision that is the subject of the application for review, the Vice-Chancellor may direct that the student be permitted to continue to undertake that program or course until the application for review has been finally decided.

Part 7—Appointment of Appeals Committee

15      Appeals Panel

                    (1)    There is to be an Appeals Panel appointed by the Academic Board.

                    (2)    The Appeals Panel is to consist of at least 2 persons in each of the following categories:

                                           (a)    students appointed after consultation with the President of the Australian National University Students’ Association Inc.;
                                          (b)    students appointed after consultation with the President of the Australian National University Postgraduate and Research Students’ Association Inc.;
                                           (c)    persons who have knowledge or experience in the teaching, research or visual and performing arts functions of the University.

                    (3)    A member of the Appeals Panel:

                                           (a)    holds office, subject to this instrument, for 2 years; and
                                          (b)    is eligible for reappointment; and
                                           (c)    may resign by written notice given to the Registrar.

                    (4)    If a student who has been appointed under subsection (2)(a) or (b) ceases to be a student, the person ceases to be a member of the Appeals Panel.

16      Appeals Committee

                    (1)    If the Registrar receives an application for review, the Registrar must appoint an Appeals Committee for the review unless the application is rejected by the Registrar under section 12 (Rejection of invalid applications).

                    (2)    The Appeals Committee must include at least 4 members of the Appeals Panel, including:

                                           (a)    1 student member from the appropriate category; and
                                          (b)    3 members appointed to the Appeals Panel under section 15(2)(c) (Appeals Panel).

                    (3)    A person appointed to the Appeals Committee must not be the original decision-maker.

                    (4)    The Registrar must appoint a person, other than a student, to be the Chair of the Appeals Committee.

                    (5)    The Registrar must appoint a person (other than a member of the Appeals Committee) to be the Secretary to the Appeals Committee.

                    (6)    The Registrar may appoint a person (other than a member of the Appeals Committee) to assist the Appeals Committee in the hearing of the application for review.

                    (7)    If the Appeals Committee is appointed to consider an application for review relating to an academic misconduct decision, the Appeals Committee must include a person from the relevant academic discipline or, if this is not possible, a related academic discipline.

                    (8)    The quorum for a meeting of the Appeals Committee (including a hearing) is 3 members, including the Chair.

Part 8—Consideration by Appeals Committee

17      Additional material

                    (1)    If material is made available to the Appeals Committee that was not before the original decision-maker, the Appeals Committee may assess the additional material provided in a summary way on the papers without conducting a hearing.

                    (2)    If, on review of the material, the Appeals Committee considers the information to be cogent, relevant or substantial, it may refer the decision back to the original decision-maker to remake the decision.

                    (3)    A decision remade following reference back under this section:

                                           (a)    stands in place of the original decision; and
                                          (b)    to remove any doubt, may be the subject of an application for review under this instrument if it is a reviewable decision.

18      Material to be provided to student

The Secretary to the Appeals Committee must provide the student applicant to the review with a copy of the material on which the Appeals Committee intends to rely no later than 5 working days before the day the application for review is to be heard.

19      Notification of hearing etc.

                    (1)    Before the Appeals Committee hears the application for review, the student may, if the student wishes, tell the President of the relevant Students’ Association about the hearing.

                    (2)    The Appeals Committee must:

                                           (a)    fix a date, time and place for the hearing of the application for review; and
                                          (b)    give not less than 5 working days written notice of the date, time and place of the hearing to the student.

20      Decision whether to conduct oral hearing

                    (1)    The application for review may be decided with or without an oral hearing.

                    (2)    In deciding whether the application for review is to be decided with or without an oral hearing, the Appeals Committee may take into account:

                                           (a)    whether the parties are able to participate in an oral hearing within a reasonable time; and
                                          (b)    whether an oral hearing would unnecessarily subject a party or a witness to stress; and
                                           (c)    any other relevant factor.

                    (3)    The Chair of the Appeals Committee must decide how the review is to be conducted.

21      Applications for review relating only to penalty or other action taken

If the application for review relates only to the penalty imposed, or other action taken, under the Academic Misconduct Rule or the Discipline Rule, the Appeals Committee must consider only the question of the penalty or other action.

22      Hearing procedure

                    (1)    At the hearing of the application for review:

                                           (a)    the procedure to be followed is at the discretion of the Appeals Committee; and
                                          (b)    the Appeals Committee:
                                                           (i)    may inform itself on any matter in relation the review in any way it considers appropriate; and
                                                         (ii)    is bound by the rules of procedural fairness but is not bound by rules of evidence; and
                                                       (iii)    must take into account any submission made by the student or the Registrar.

                    (2)    At the hearing of the application for review, the Registrar may:

                                           (a)    appear in person or, with the express approval of the Appeals Committee, through an advocate; and

[Note:                The Registrar may appoint a nominee under section 28 (Nominees for Vice-Chancellor and Registrar) to appear in person for the Registrar.]

                                          (b)    call and question witnesses; and
                                           (c)    make written or oral submissions.

                    (3)    The hearing of evidence by the Appeals Committee may be adjourned from time to time and from place to place.

                    (4)    Unless the Appeals Committee otherwise directs, a person is not entitled to be present at the hearing of the application for review unless the person is:

                                           (a)    a member of the Appeals Committee; or
                                          (b)    the Registrar or an advocate for the Registrar; or
                                           (c)    the student or the person nominated by the student under section 23(2) (Student’s rights on review); or
                                          (d)    the Secretary to the Appeals Committee; or
                                           (e)    a person giving evidence before the Appeals Committee; or
                                           (f)    a person appointed under section 16(6) (Appeals Committee) in relation to the Appeals Committee.

                    (5)    The hearing of the application for review is not ineffective only because of a formal defect or irregularity in the convening or conduct of the Appeals Committee.

23      Student’s rights on review

                    (1)    At the hearing of the application for review, the student may:

                                           (a)    appear in person; and
                                          (b)    call and question witnesses; and
                                           (c)    make oral or written submissions.

                    (2)    At the hearing of the application for review, the student may be accompanied by another person nominated by the student who may:

                                           (a)    observe the proceedings; and
                                          (b)    with the express approval of the Appeals Committee, act as an advocate for the student.

                    (3)    If the Appeals Committee gives an approval under subsection (2)(b) and the Registrar is not present at the hearing (in person or through an advocate), the Appeals Committee must immediately tell the Registrar about the approval and adjourn the hearing to allow the Registrar to appear.

24      Non-appearance before Appeals Committee

                    (1)    This section applies to the application for review of the decision of the original decision-maker if the student:

                                           (a)    does not appear in person at the hearing of the application for review; and
                                          (b)    is not otherwise represented at the hearing; and
                                           (c)    does not make a written submission under section 23(1)(c) (Student’s rights on review).

                    (2)    The decision of the original decision-maker takes effect immediately after the conclusion of the hearing unless it has already taken effect.

25      Decision by Appeals Committee

                    (1)    After considering the application for review, the Appeals Committee may:

                                           (a)    confirm the decision of the original decision-maker; or
                                          (b)    vary the decision; or
                                           (c)    set aside the decision and make a fresh decision in substitution for the decision set aside; or
                                          (d)    set aside the decision.

                    (2)    The Appeals Committee may:

                                           (a)    accept an undertaking from the student; or
                                          (b)    make recommendations arising from its consideration of the application for review, including recommendations for:
                                                           (i)    counselling; or
                                                         (ii)    intervention; or
                                                       (iii)    corrective or other measures that should be taken.

                    (3)    The Appeals Committee may vary the decision under subsection (1)(b), or substitute a fresh decision under subsection (1)(c), only if the decision as varied, or the fresh decision, is a decision that the original decision-maker could have made.

                    (4)    In deciding a question in relation to the penalty imposed, or other action taken, in relation to the student under the Discipline Rule, the Appeals Committee must take all relevant matters into account, including, for example, the following:

                                           (a)    the health and safety of students and staff of the University, and the protection of University property;
                                          (b)    the objectives of punishment, deterrence and rehabilitation;
                                           (c)    the nature and severity of the student’s misconduct;
                                          (d)    the effect of the misconduct, including any loss, damage or harm caused to the University or its students, staff or property.

                    (5)    Without limiting subsection (4), the Appeals Committee may take into account any other finding of misconduct (however described) made in relation to the student and the action (if any) taken in relation to that finding.

                    (6)    The decision of the Appeals Committee and the reasons for the decision must be given in writing to the student and the Registrar by the Secretary to the Appeals Committee within 10 working days after the day the decision is made.

26      Undertaking by student

                    (1)    If the Appeals Committee accepts the student’s undertaking under section 25(2)(a) (Decision by Appeals Committee):

                                           (a)    the Appeals Committee must ensure that a written copy of the undertaking to the student and the Registrar; and
                                          (b)    if the student contravenes the undertaking, the Appeals Committee may revoke its earlier decision and make any decision that it could have made under section 25(1).

                    (2)    In deciding what action (if any) it should take under subsection (1)(b), the Appeals Committee may take into account the student’s contravention of the undertaking and any explanation provided by the student for the contravention.

                    (3)    Subsection (2) does not limit the matters that the Appeals Committee must or may take into account.

27      Decision final

The decision of the Appeals Committee is final.

Part 9—Miscellaneous

28      Nominees for Vice-Chancellor and Registrar

                    (1)    A University official may, in writing, appoint a member of the staff of the University (the nominee) to exercise all or any of the official’s functions under this instrument (other than this section).

                    (2)    A function exercised by the nominee under the appointment is taken to have been exercised by the University official.

                    (3)    This section does not prevent the University official from exercising a function in relation which the nominee has been appointed.

                    (4)    In this section:

University official means:

                                           (a)    the Vice-Chancellor; or
                                          (b)    the Registrar.

29      Certain functions not to be exercised personally by original decision-maker

                    (1)    This section applies to a person in relation to a reviewable decision made personally by the person.

                    (2)    The person must not personally exercise any function under any of the following provisions in relation to the reviewable decision:

                                           (a)    section 12 (Rejection of invalid applications);
                                          (b)    section 13 (Referral of application to Appeals Committee);
                                           (c)    section 16 (Appeals Committee);
                                          (d)    section 22 (Hearing procedure);
                                           (e)    section 23 (Student’s rights on review);
                                           (f)    section 30 (Extension of time).

30      Extension of time

                    (1)    The Registrar may extend a time limit under this instrument.

                    (2)    In deciding whether to extend a time limit, the Registrar must take into account:

                                           (a)    the reason why an extension is sought; and
                                          (b)    the period of extension; and
                                           (c)    the prejudice (if any) that will be caused by the granting of the extension.

                    (3)    An extension must be for no longer than is reasonably necessary.

                    (4)    A time limit may be extended even though the time limit has expired.

31      Service of notices etc.

                    (1)    This section applies to a notice or other document that is required or permitted to be served on an individual under this instrument (whether the word ‘give’, ‘notify’, ‘send’, ‘tell’ or another word is used).

                    (2)    The document may be served on an individual:

                                           (a)    by giving it to the individual; or
                                          (b)    by sending it by prepaid post, addressed to the individual, to an address shown in the University’s records as the individual’s semester address, work address or permanent home address; or
                                           (c)    by emailing it to:
                                                           (i)    if the individual is a student at the University—an email address provided by the University to the individual; or
                                                         (ii)    if the individual is not a student at the University—an email address otherwise recorded by the University as the individual’s email address.

                    (3)    A document served by post on an individual under subsection (2)(b) is taken to have been served on the day it would have been delivered in the ordinary course of post.

                    (4)    A document served by email on an individual under subsection (2)(c) is taken to have been served on the day it would been received in the ordinary course of email transmission.

32      Repeal etc.

                    (1)    The Appeals Rule 2017 is repealed.

                    (2)    To remove any doubt, a reference in a rule, order or other document of the University to the Appeals Rules (whether with or without the year of its making or the year and number of the year of its making) includes a reference to this instrument.

33      Transitional

                    (1)    To remove any doubt, this instrument applies to a decision taken, or a proceeding commenced but not concluded, before the commencement of this section.

                    (2)    This section is additional to, and does not limit, the following provisions:

                                           (a)    the Acts Interpretation Act 1901 (Cwlth.), section 7;
                                          (b)    the Interpretation Statute, section 9.