Legal Education Digest
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Legal Education Digest |
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M. Wyburn
8(2) QUTLJJ, 2008, pp 314–341
Much has been written in the press and the academic literature about the observed increase in plagiarism by university students.
In the past, instances of such misconduct might generally have been handled on an informal basis, usually by the course coordinator. The student might be punished with a zero grade for the assignment or in more serious circumstances, a subject failure, but such incidents rarely became part of the student’s permanent record. Nowadays the picture is far more complicated. Students tend to see themselves as paying customers for services delivered by universities and are far more appeal procedure-literate. This has resulted in the development of detailed administrative rules for the handling of allegations of student academic misconduct.
There are various terms adopted in university rules such as ‘academic misconduct’ or ‘academic dishonesty’ but whatever the particular term used, the conduct generally includes matters such as plagiarism, recycling of work, fabricating data and contracting others to write assignments or sit examinations.
There are various definitions of plagiarism but it is generally understood to mean the appropriation of the work (the words or ideas) of another without attribution. It is a breach of ethical principles rather than legal rules. There appears to be genuine widespread confusion about the precise parameters of the term. The definition of plagiarism adopted in university rules therefore tends to be detailed; for instance it may distinguish between intentional acts (eg dishonest plagiarism) and those acts done carelessly or recklessly (eg negligent plagiarism). The failure to clearly define plagiarism, in particular whether it requires intent, can create confusion.
While the universities ensure there are detailed rules in place, the question is whether adequate time is taken in the curriculum to explain the reasons behind the rules and explore their practical application across the variety of assessment tasks students will meet in their studies.
A breach of the increasingly more complex rules dealing with academic misconduct at university may have serious consequences for the student even after they have graduated. One example of this is when a student later seeks admission to legal practice. In order to be admitted to practice as a legal practitioner, apart from certain academic and practical legal training requirements, the applicant must be a ‘fit and proper person to be admitted’. When applying for admission, the applicant is obliged to disclose matters having a bearing on this issue.
An adverse finding of academic misconduct is a matter that must be considered by the applicant for admission when he or she decides whether any disclosure is necessary.
The issue of disclosure of plagiarism incidents is not only relevant to law students who are likely to be alerted to the potential problem when they enter the law faculty and reminded of it throughout their degree program. It is also relevant to the numbers of university students who undertake studies other than law and later decide to study law at graduate level. Until they arrive at the law faculty, these students generally would be unaware of the potential significant effect of an adverse finding of academic misconduct on their later entry into legal practice.
The recent introduction of more detailed requirements as to disclosure of incidents arising during an applicant’s tertiary studies appears to be a response to a series of cases involving earlier allegations of plagiarism made against students at several Australian universities. However, commentators have generally chosen not to examine in any detail how the legal principles have been applied to controversial facts arising in the environment of the modern university. Consequently the discussion has so far failed to draw attention to important aspects of the issue: the potential for genuine student confusion about their obligations in relation to plagiarism (especially as it relates to collaborative work), the consequences of inadequate record keeping when events are revisited some time later by the courts and the apparent willingness of the admitting court, when considering the appropriateness of the disclosures made, to re-examine the earlier events and to make findings about the earlier allegations of plagiarism.
An outside observer reviewing the cases cannot help but feel sympathy at times for students caught up in these incidents, as well as for the academic and administrative staff involved.
Law Society of Tasmania v Richardson. It was an application by a state law society to have three legal practitioners removed from the roll; the son who had been involved in a plagiarism incident at law school and his legal practitioner parents who had been involved in his admission to practice.
In 1999 R was a fifth year arts/law student at the University of Tasmania. His Equity & Trusts assignment that year was a drafting exercise involving a superannuation trust deed.
R and seven other members of the class later faced allegations of academic misconduct in respect of the assignment. The allegation made against R was originally described as ‘copying’ amounting to academic misconduct. At the relevant time the university rules required all allegations (serious and less serious) to be referred to the university Academic Misconduct Committee.
In response to the allegation that his assignment was ‘near identical’ to that of the other student, R admitted he had worked on the assignment with the other student but claimed this cooperative approach was accepted by the law school and in acting in this way he had not intended to obtain ‘an academic advantage to which he was not entitled’ within the relevant university ordinance’s definition of academic misconduct.
On 29 June, 1999 the university Academic Misconduct Committee found the allegation of academic misconduct against R established. However its decision failed to disclose the nature of the academic misconduct found to be proven against R, ie what part of the definition of academic misconduct was being relied upon. In its decision the committee acknowledged R’s belief he had engaged in acceptable cooperative conduct but decided ‘working co-operatively does not absolve a student from taking individual responsibility for the originality of his or her work’. The committee determined the penalty would be a reprimand and no credit for the assignment. In its decision the committee mentioned that when later seeking admission to practice, ‘there would be an expectation’ that R disclose the reprimand to the court and it referred to the case of The New South Wales Bar Association v Davis, a case that on its face does not appear to be relevant to R’s circumstances.
On 13 July R appealed the committee’s finding of academic misconduct to the Discipline Appeals Committee on grounds that included denial of natural justice. He argued that he had been denied an adequate opportunity to respond to the evidence of other witnesses at the committee hearing, ie the lecturers and the other student whose work was alleged to be the same as his. R did not initially persist with the appeal when the hearing did not occur as required because by this time he had formed the view he would be able to complete his degree, commence the legal practice course and he need not disclose the adverse finding on his admission.
R undertook a legal practice course in the first half of 2000 and applied for admission to practice in July that same year. According to his evidence, R believed he was not obliged to disclose the academic misconduct matter on his admission and so his application for admission made no reference to it. As part of the admission process his father supplied an affidavit attesting to his son’s ‘good fame and character’ and that he was a ‘fit and proper person’ to be admitted.
R was admitted to practice in August 2000.
In 2001 the Law Society of Tasmania formed the view that R should have disclosed to the admitting court the finding of academic misconduct. Faced with the Law Society’s stance, R decided to proceed with his appeal from the determination of the Academic Misconduct Committee. On 29 November, 2001 the university Discipline Appeals Committee allowed the appeal and set aside the first committee’s decision because the earlier committee had ‘failed to comply with the rules of natural justice by failing to give [R] an opportunity to respond to statements and comments received by the committee from three witnesses, being the lecturers in the Equity and Trusts unit and [the other student involved in the incident]’.
In 2002 the Law Society sought orders that R and both his parents be removed from the roll of legal practitioners of the Supreme Court of Tasmania. Its argument was based not on the act of academic misconduct as such, but rather on R’s failure to disclose the committee’s findings to the court on his admission.
While at the relevant time some states had very detailed rules about what must be disclosed on admission, the Tasmanian jurisdiction did not. In these circumstances the applicant’s duty was to ‘place before the Court any matter that might reasonably be regarded by the Court as touching on the question of fitness to practice’ (quoting from Re Evatt).
In relation to the Law Society’s application to strike R off the roll based on his failure to disclose the finding of academic misconduct made against him, the onus was on the Law Society to establish R was not a fit and proper person to remain on the roll. The court found the Law Society had failed to establish this. In the court’s view ‘[t]he most severe criticism that arguably may be made against [R] is that he made an error of judgment, a mistake, based largely on the advice of two experienced practitioners who were his parents’.
Claims by the Law Society against R’s parents for professional misconduct based on their failure, during the admission of their son, to disclose the findings of the Academic Misconduct Committee, were also rejected by the court. The test was ‘whether the behaviour would reasonably be regarded by legal practitioners of good repute and competency, as disgraceful or dishonourable’. The father had been very much involved in his son’s admission but his failure in relation to the issue of disclosure was ‘at worst an error of judgment’ and did not amount to professional misconduct. His mother’s role in the admission process was merely as ‘proud parent’ and not legal counsel and the bringing of claims against her by the Law Society ‘shocked’ the court.
Several commentators have been quick to condemn the student but they do not criticise the role of academic staff who were unable to recall the events in detail and obviously had not retained written records sufficient to assist their recollection. The case highlights the potential for cascading procedural flaws on the part of the university: a final exam dependant on satisfactory completion of the disputed assessment task was held prior to the first committee’s decision; the decision failed to properly identify the nature of the misconduct found established; the decision also failed to take account of the fact the exam had been held in the meantime and therefore the sanction given was inappropriate; the committee’s procedures did not offer the student the appropriate opportunity to meet the claims made against him; and there was insufficient evidence maintained of meetings held and advice given to the student and his parent.
Re AJG. The Queensland Court of Appeal was faced with an applicant for admission who had disclosed he had been found guilty of copying the work of another student while enrolled in the Practical Legal Training course at Griffith University in 2003. The penalty that had been imposed was failure in the subject. The student’s application was not opposed by the Solicitors Board as the incident appeared to be an isolated one and at the time, the applicant had been suffering from ‘financial and domestic’ stresses.
The court decided to adjourn the application for admission and not have it re-listed for six months. The court was less prepared than the Solicitors Board to take into account the stresses the applicant had been subject to at the time of the relevant conduct. In its view it was ‘inappropriate that we should, without pause, accept as fit to practise an applicant who responds to stress by acting dishonestly to ensure his personal advancement’.
In the court’s view, ‘Legal practitioners must exhibit a degree of integrity which engenders in the Court and in clients unquestioning confidence in the completely honest discharge of their professional commitments. Cheating in the academic course which leads to the qualification central to practice and at a time so close to the application for admission must preclude our presently being satisfied of this applicant’s fitness’.
Re Liveri. The problem for the applicant was that while she was studying commerce and law at James Cook University three findings of academic misconduct were made against her. The first adverse finding involved an optional assignment in The Law of Trusts course in 2002. Her assignment response turned out to be a copy of a published article available from the Internet, with only relatively minor changes.
Because of this finding against her, the university reviewed other assignments submitted by L. As a result of these further inquiries, two other findings of academic misconduct were made in relation to earlier assignments. The first involved Administrative Law in 2000 where L’s assignment contained ‘substantial commentary’ by an academic without proper attribution. The second was an assignment for the Law of the Sea in 2002 which quoted from a government publication without identification of the source.
The Queensland decision revealed that L had undertaken a practical legal training course and sought admission to practice in NSW in 2004. In her NSW application she disclosed the three earlier findings of academic misconduct but it was rejected by the Legal Practitioners Admission Board in September 2004 on the ground that the Board had not been satisfied as to her fitness to practice.
In November 2004 L applied to the Queensland Legal Practitioners Admission Board for a declaration of suitability for admission to practice under s 36 of the Legal Profession Act 2004 (Qld). She disclosed the earlier findings of academic misconduct in her application but claimed the offending Trusts assignment had been submitted by mistake. The application to the Board was unsuccessful and L did not appeal its decision.
In October 2005 L applied for admission to the Supreme Court of Queensland. While she was before Atkinson J on these matters, L was warned by the judge in relation to self-incrimination and the matter was stood down so she could obtain legal advice. Her application was withdrawn later that day.
In April 2006 L brought a second application for admission in Queensland. Again she disclosed the earlier findings of academic misconduct but this time she admitted the copying and accepted ‘full responsibility’ for her actions.’ The court considered it was not satisfied she was fit to practice.
It ordered the application be adjourned to a date to be fixed but it was not to be re-listed for at least six months.
This third case in the series again illustrates the likely response of the court ie to have the application for admission delayed for a period. It also indicates the harsher stance of the court where the academic misconduct is by a more mature student. This contrasts with the willingness of the court in the first decision to take into account the youth of the applicant at the time of the incident.
The decision also indicates that more will have to occur in the period between applications than the mere passage of time. One matter the courts will be looking at when the applicant comes before them again seeking admission, is whether there has been any change in the applicant’s view of his or her prior conduct.
Re Humzy-Hancock. The Queensland Court of Appeal had before it an application for admission disclosing earlier allegations of academic misconduct while the applicant, H, had been studying law and commerce at Griffith University.
Three instances of academic misconduct were examined. The first, in 2003, concerned an assignment in the Torts and Accident Compensation course in which it was alleged wrongful collaboration occurred between H and another student, ie that parts of his assignment were copied into the other student’s assignment. The Board found both students guilty of academic misconduct; H had made available an electronic version of part or all of his assignment to the other student who then cut and pasted some of the material in breach of the law school’s Assessment Policy & Procedures.
The second incident, in the following year, involved plagiarism in an assignment for International Trade Law. The submitted assignment drew heavily on material from an article. The article was acknowledged in the assignment bibliography and in some parts of the assignment but there were several instances of inadequate attribution of the material.
The third incident related to the same subject, International Trade Law, but this time a take-home exam in October 2005. He wrote to the chair admitting some ‘referencing errors or mistakes’ in the assignment and then on a later occasion wrote again, this time admitting he had made similar errors in the take-home exam. The penalty was failure in the subject and exclusion from the degree programme for six months.
McMurdo J in the Queensland Supreme Court found all the allegations of academic misconduct not established on the facts. It was not a matter of the court reinterpreting the relevant university rules; the rules required an intention that had not been established in the circumstances. The inadequate attribution was the result of ‘carelessness’ and ‘poor work’ and did not reflect ‘an intention to pass off the work of another’ as his work.
The decision is an example of an applicant who has not only done the right thing by disclosing the prior adverse findings of academic misconduct against him, but also now enjoys the benefit of having the earlier findings determined by the court to be incorrect.
In the Matter of OG, a Lawyer. In 2005 OG and GL were studying business and law at Victoria University. One of the courses they had in common was Strategic Marketing and Planning. As part of their assessment they teamed up together to undertake a group assignment. The second assignment for the same course was an individual assignment but it drew upon the material covered in the first group assignment; the task for the second assignment involved applying one of the two marketing strategies identified in the first assignment. Academic staff identified a considerable number of similarities (26 were highlighted on a marked up copy of the papers) between the two submitted assignments. Both students were asked to attend a meeting with two business faculty staff. In June 2005 GL met with K and H. In August, after OG returned from an overseas trip, OG met with K and P.
There was considerable dispute about what occurred at these two meetings. In relation to both meetings, the academic staff who gave evidence (H and P), were unable to recall details of the events.
The outcome of the two meetings was that both students received a zero grade for the assignment.
As part of the practical legal training course they were advised about admission procedures, including the obligation for disclosure to the Board of Examiners of matters relevant to establishing they were a ‘fit and proper person’ to be admitted to practice. Among the materials given to them was a document giving examples of the matters to be disclosed. It included the following: ‘You are obliged to disclose to the Board all criminal charges or charges of a similar nature (eg a charge before a university disciplinary board for stealing books from the library, plagiarism and the like)’. GL took the view he was obliged to disclose the matter. OG was of the opinion that as there was no formal finding against them and no formal reference to a university disciplinary board, there was no obligation to disclose.
In August 2006, as part of his application for admission to practice, GL disclosed the matter to the Board of Examiners. In response, the Board convened a special hearing to consider GL’s disclosure.
In September 2006 OG also made a disclosure to the Board about the zero mark he received in the marketing course. OG asserted that ‘at no time was it suggested to be plagiarism or the like’, nor did the matter go before a university board or lead to failure in the subject. The secretary of the Board noted the disclosure as ‘minor’, did not refer it to the Board and OG received the necessary certificate from the Board under the rules for admission to legal practice.
In October GL provided the Board with more details about the academic misconduct and appeared before a full hearing of the Board. On 14 November OG was admitted to practice.
In December, at the final hearing in relation to GL’s disclosure, the Board refused to grant the required certificate to GL. In its decision the Board noted the problem as not the alleged academic misconduct but rather the quality (‘candour’) of GL’s disclosure on admission.
In February 2007 the Board of Examiners reported to the Supreme Court of Victoria that it appeared OG’s earlier disclosure was ‘inadequate’ and involved ‘a lack of candour’.
The question for the Full Court of the Victorian Supreme Court was whether OG had made an appropriate disclosure when he was admitted to practice.
The court agreed with the Board’s contentions that in his letter of disclosure to the Board, OG ‘deliberately or recklessly’ misrepresented the circumstances in which he received the mark of zero for the assignment.
The court revoked the order admitting OG to practice and it ordered OG be struck off the roll of persons admitted to the legal profession.
The five cases discussed above illustrate the very serious consequences that arise from a finding of academic misconduct against a student during their university studies when they later seek to apply for admission to legal practice.
The cases illustrate the lengths the court will go to in order to discern the nature of the academic conduct so it can investigate whether the applicant for admission was guilty of any blameworthy conduct not candidly disclosed as part of the admission process. This means that universities will be under pressure to create and maintain the necessary records so staff are in a position to provide appropriate evidence when the events are re-examined by the courts.
Another challenge for higher education is to ensure the protection of the interests of the students involved. Many students must undertake paid work in competition with their scholarly endeavours, increasing the pressure on them and the temptation to cut corners in their academic work.
As OG’s Case illustrates, the obligation of disclosure is not limited to circumstances where there has been a formal university committee determination of academic misconduct. If a student is aware of these consequences, he or she may be more likely to use the appeal procedures to have the finding overturned, as in R’s Case.
In OG’s Case, it was a marketing subject rather than a law subject that created the disclosure problem. Therefore it is important for the wider higher education community to be aware of these issues and not merely the law faculties.
The need for disclosure of academic misconduct to admitting courts, especially if not limited to serious acts brought before formal university committees (eg in OG’s Case) will undoubtedly increase the workload of the court agencies administering the admissions process.
For the courts, there is also the question of revisiting the original academic misconduct allegations. The primary issue for the court will always be the nature of the disclosure by the applicant rather than the academic misconduct itself. However it is clear from the cases discussed above, the courts will often wish to have the facts of the academic misconduct clarified before considering whether the disclosure or non-disclosure has been appropriate.
The courts might also bear in mind that there is a difference between the very strict academic rules of plagiarism and what these newly admitted students will observe in commercial legal practice.
There are different conventions operating in both environments. The community of practising lawyers relies upon published compilations of forms and precedents. This community also makes use of documents and letters as precedents, some generated from within the law firm and some of which have been received from other firms during the general conduct of legal matters (eg pleadings in litigation).
It is clear disclosure must be made of academic misconduct incidents occurring at university, and as appropriate, regret shown or explanation given. But once disclosure has been made and the court denies the application for admission, it is not clear what the applicant may do between that date and a later application for admission, in order to convince the court of his or her suitability the second time around.
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URL: http://www.austlii.edu.au/au/journals/LegEdDig/2009/37.html