Humzy-Hancock, Re [2007] QSC 34 (26 February 2007)

"The issues of whether or not the applicant was guilty of plagiarism or other relevant misconduct in relation to the matters raised by the (Legal Practitioners Admission) Board in its submissions dated 8 September 2006 (or such of those matters as a Judge of the Trial Division thinks fit to be considered) be remitted for the determination of a Judge of the Trial Division."

[2] The factual questions have now been defined by particulars provided by the Admission Board. Broadly speaking, the particulars involve three occasions of alleged misconduct. The first is that the applicant wrongly collaborated with another student in the writing of that student's assignment in 2003. The second involves some 10 particulars of alleged plagiarism in the applicant's submission of an assignment in October 2005. The third involves some nine particulars of alleged plagiarism in answering a "take home exam", also in October 2005.

[3] In 2003 the applicant wrote an assignment in the subject of Torts and Accident Compensation. On about 17 November 2003, he received a letter from the then Dean of the Faculty of Law, Professor Hunter, complaining of academic misconduct by wrongful collaboration. Reference was made to the copying of parts of the applicant's assignment into the assignment of another student, and to their collaboration "in planning the format and structure of the assignments and discussion of some of the articles dealt with in the assignment."[2]

[4] On 4 December 2003 the applicant replied to Professor Hunter's letter. He began with a reference to what he described as "some obvious similarities between my assignment and that of [the other student]". He attempted to explain the fact of similarities in this way. In the fortnight before the assignment was due, he and the other student discussed the subject matter of the assignment, and the likely sources of materials. They "pooled" their research notes and they worked together at the library searching legal databases. But they also did some research work independently and the applicant was adamant that their writing was done independently. On those facts he then conceded, and still concedes, that there was some collaboration. But at least when writing this letter in 2003, he argued that what had occurred was "normal practice amongst law students" and that it was "not unusual ... to discuss different interpretations and approaches of the requirements detailed in the assessment guides." He wrote "to be honest, it was my understanding that what I now know as 'collaboration' under the Academic Misconduct Policy was not only acceptable but perceived as general practice." His letter continued:

"Having now read the two assignments, I can now understand the consequences of getting together with another student and attempting to break down and discuss assessment items meant for individual work. At the same time, [the other student] and I thought what we were doing was not wrong, but an accepted means of approaching a difficult task ... I wish I had spent more time understanding the Academic Misconduct Policy, particularly as it pertains to collaboration. I misunderstood its reaches, and thought that it only addressed cheating in exams and plagiarism, and never knew that there was a section dealing with 'collaboration' as an offence at all, let alone one with potentially serious penalties. That said, I accept that it was my responsibility to have a full and comprehensive understanding of the Policy, and I therefore must accept the consequences of my stupidity and carelessness. ..."

[5] Accordingly his explanation for the "obvious similarities" in the assignments was that he and the other student had extensively discussed the task, and to a substantial extent they had worked together in their research. His letter did not address another possibility which was, as the University ultimately concluded, that the other student had simply copied parts of the applicant's assignment.

[6] On 11 December 2003 Professor Hunter again wrote to the applicant. She advised that after reading his letter, and a letter from the other student, it was still not explained why there was an identical paragraph in the assignments, and that the conclusions in each assignment were "virtually identical". She convened a hearing of the Law Faculty's Assessment Board to further examine the complaints.

[7] A hearing before that Board took place on 11 February 2004. The applicant gave evidence. So too did the other student although not whilst the applicant was present. The Board's decision was set out in a letter from Professor Hunter to the applicant of 20 February 2004, in which she recorded the following findings by the Assessment Board:

"1. You and [the other student] did collaborate in the writing of your assignment contrary to the provisions of the Law School's Assessment Policy, and are therefore guilty of academic misconduct.

2. In relation to the identical paragraph on deterrence theory, the collaboration took the form of the provision by you to [the other student] of either a draft or the final version of part or all of your assignment, in electronic form. The fact that [the other student] cut and pasted the paragraph from an electronic source is evident by the fact that in his assignment, this paragraph is not justified, whereas all other paragraphs in his assignment are justified. The fact that he received more than just that paragraph from you is evident by the fact that (probably through editing) he altered the last footnote reference in the paragraph and attached the last footnote from your paragraph to a subsequent passage of text in his assignment.

3. You also clearly collaborated in writing the conclusion to the assignment, most likely, again, through provision by you of an electronic copy of your conclusion, which [the other student] then subjected to minor editing and rearrangement.

4. It was foolish and naïve of you to attempt to assist another student in this way. And while you were prepared to admit that you had collaborated with [the other student] contrary to the Assessment Policy, the findings above also suggest that you were less than totally forthcoming to the Assessment Board as to how the collaboration occurred. You did, however, express remorse for your actions."

[8] The collaboration alleged by the Legal Practitioners Admissions Board is particularised simply as the matters contained in that letter. As I read the letter, the findings concern the specific conduct of the applicant knowingly permitting his assignment, or parts of it, to be at least read by the other student, if not copied. The letter does not refer to other conduct such as the joint research. Perhaps that is because the other conduct was admitted by the applicant. Another explanation may be that the Assessment Board did not consider that such conduct, absent that involving the copying of his assignment, was of itself academic misconduct.

[9] At the commencement of this hearing, Mr Derrington SC for the applicant told me that this other conduct was conceded to be academic misconduct. Should it matter, I would not have been satisfied about that. According to the Assessment Policy and Procedures published by Griffith Law School, some collaboration is permissible in that a student may:

"(a) discuss with other persons the issues raised by the item of assessment;

(b) discuss with other persons possible means by which to address issues raised by the item of assessment;

(c) collaborate in the location of, and share, sources of information relevant to the item of assessment ..."

"(e) collaborate with other students, or other persons, in planning the format or structure of the student's submission for that item of assessment;

(f) collaborate with other students, or other persons, in the writing of all or a part of the student's submission for that item of assessment;

(g) collaborate with other students, or other persons, in the writing of all or a part of any other student's submissions for that item of assessment;

(h) provide a copy of his or her work in respect of that item of assessment to another student ..."

The conduct admitted by the applicant, in his letter of 4 December 2003, includes permissible collaboration in terms of paragraphs (a), (b) and (c) and it is not clear that any of it involved impermissible collaboration in the sense of paragraph (e). It is unnecessary for me to determine that matter and it was not the subject of argument. It should not be thought that by finding that this conduct occurred that I have found academic misconduct.

[10] He now admits, as the Law School's Assessment Board found, that an electronic version of his assignment was copied, by the reproduction of a paragraph and another part which had expressed his conclusions. The question is whether he collaborated by knowingly permitting that to be done, or whether, as he said in evidence, this occurred without his knowledge.

[11] Consequent upon its findings, the Assessment Board imposed a penalty of failing him in that subject. He was told that if he was dissatisfied with the decision he had a right of appeal to the University's Appeal Committee. But he did not appeal. He says that had he appealed then "the completion of my studies would have been delayed" and that "additionally the person with whom I was alleged to have collaborated was at that time a friend of mine, which would have made any appeal awkward for me and the person found to have copied my work". These explanations are not compelling. But nor does the fact that he did not appeal reliably indicate that he was guilty.

[12] In his evidence before me, he said that the other student, who lived nearby, would often be at his house and use the applicant's computer because the applicant had broadband internet access and the other student did not. The applicant says that in this way his assignment, or a draft of it, would have been easily accessible. He strongly denied that he had allowed the other student to copy it, or that he was aware that this had happened.

[13] As I understand the University's finding, and therefore the present allegation against him, it is that he provided the other student with an electronic copy of his draft. The applicant's evidence provides an explanation for how a copy could have been obtained without his knowledge. I am not persuaded to reject that explanation. It is not so improbable in itself and nor is it made improbable by other evidence. I conclude that the allegation of collaboration which is the subject of the Admissions Board case is not established.

[14] The parties appear to agree on what is meant by plagiarism for present purposes. The applicant submits, and the Board accepts, that the question is whether the applicant intended to pass off the work of others as his own. It is also agreed that this is the same as plagiarism as discussed in the Griffith Law School Assessment Policy and Procedures, which is "the knowing presentation of the work or property of another person as if it were the student's own."[3] That publication also provides what it describes as examples of plagiarism. They include conduct such as "closely paraphrasing sentences or paragraphs from one or more sources without appropriate acknowledgment in the form of a reference to the original work or works."[4] As I will discuss, in many instances that occurred here. But the critical question is that of intent: did the applicant mean to represent that the work of others was his own work?

[15] The assignment was for the subject International Trade Law. It was submitted on 10 October 2005. By this time, the applicant was working four days a week for a firm of accountants but he was nevertheless undertaking the course of a full-time student. The subject International Trade Law was conducted by the University as a so-called "intensive" course, over three weekends in October 2005. In addition to his work demands, the applicant also had distractions because of events within his family. He says that in consequence he prepared this assignment "hurriedly and without the proper care and attention for which was required." He says that this explains his failures to give proper attribution to his sources.

[16] The assignment was entitled "The Law, the Economy, the Environment and the US/Australian Free Trade Agreement". The essential argument developed within this essay was that the Free Trade Agreement would have environmental consequences for Australia, which in turn would have economic consequences, so that any economic assessment of the impact of the Free Trade Agreement should consider its environmental impact. After the title page, there were seven pages of typed text under various subheadings. The ninth page was a bibliography. Significantly it included a paper by Mr M Cebon, published on line in "OzProspect". The publication was cited in several places in the applicant's text and footnotes. But nevertheless the attribution to Mr Cebon's work was, objectively speaking, inadequate. The Board's case is that this was intentional.

[17] I go then to the Board's particulars. The first concerns what appears at the beginning of the essay, where the applicant wrote:

"A free trade agreement between Australia and the US will bring with it significant environmental impacts. According to Cebon the Australian Federal Government has commissioned two studies to assess the economic impact of the agreement, but unlike the US where environment reviews are legislated, it has not conducted any research into the potential environmental impact of the agreement."

At the end of that second sentence there was a footnote to the Cebon publication. The problem is that the first sentence also derives from the same work. Indeed it is a word for word reproduction. A reader would not realise that. So the attribution, by the footnote at the end of the second sentence, was inadequate. But the first sentence simply stated a general proposition which was developed in this essay. It was poor work for the applicant simply to copy it without due attribution. But it does not follow that he intended to pass off this sentence as entirely his own.

[18] The next particular concerns a sentence appearing on the second page of the text. This was in the context of a reference to what had been said by a Mr Zoellick to the United States Congress. In the sentence complained of, the applicant wrote that Mr Zoellick had said certain things. Clearly this was a paraphrase of what was said by Mr Cebon in his publication. But the applicant had misread what Mr Cebon had written in relation to Zoellick. The applicant wrote that Zoellick had made these statements, whereas they were propositions expressed by Mr Cebon, albeit by reference to Mr Zoellick. In any case, none of this sentence was attributed to Mr Cebon. The mistake in attributing these things to Mr Zoellick fortifies the impression that the failure to give attribution to the Cebon article was poor work, not plagiarism.

[19] Then followed about one page of text under the heading "Environmental Economics", about which there is no complaint, followed by the heading "Legal and Policy Issues". The third particular relates to two sentences under that heading. By a footnote the applicant attributed that matter, but wrongly attributed it to another publication instead of to Mr Cebon. In fact, it is a word for word copy of two sentences from the Cebon publication. And Mr MacSporran SC is correct in saying that the words should have appeared as a quotation. But then the very next sentence begins "Cebon says" and ends with a footnote to his paper. One possibility is that the applicant knew what he was doing, and intending to avoid the impression that he had heavily borrowed and indeed quoted from Cebon's work, he decided to pass off Mr Cebon's work as that of someone else. Another possibility is that this was simply careless work. In considering these possibilities, of course, all of the evidence has to be kept in mind. One instance of sloppy work might be easier to explain than several.

[20] The next particular relates to a paragraph on the fourth page of the text, which consists of two sentences occupying seven lines. At the end of the second sentence there is a footnote reference to the Cebon publication. But the reader would not have known that it was a direct quotation. Nor would the reader necessarily have thought that the first sentence came from that publication. Again the attribution was insufficient. But as with many of these instances, it would be a curious form of plagiarism which would refer the reader to the very work which was being copied.

[21] The next two particulars (which concern the next paragraph in the essay) involve some eleven lines consisting of four sentences, all of which was simply copied from the Cebon publication. At the end of the second sentence a footnote appears. But it refers not to Cebon but to another publication. So does another footnote at the end of the paragraph. Now again a student might attempt to disguise the extent of his use of the Cebon work by attributing some passages to a different work. Whilst that is possible, it is relatively unlikely. The more likely explanation is that the attribution to another publication was a mistake: that the applicant intended to attribute this paragraph to Cebon and that he had not appreciated that the passage should be shown as a direct quotation.

[22] The next two particulars involve two paragraphs of what appears on the fifth page under the heading "Australia's Quarantine Laws". Each is a reproduction from the Cebon article. The first is not attributed to Cebon or any other source. The second is incorrectly attributed to what was said by someone else in an ABC radio program in August 2003.

[23] These paragraphs were followed immediately on the next page by a ten line paragraph, which again was a reproduction of a passage from the Cebon article and is the subject of another particular. But this time there was some attribution to Cebon, by a footnote at the end of the paragraph. This could give the impression that it was only the proposition in the last sentence which was derived from Cebon, rather than the entire paragraph being a direct copy.

[24] The final particular involves the first of two paragraphs under the heading "Conclusion". The applicant there set out, as a quotation, something which had been said by Sir Gustav Nossal. He duly attributed this to Sir Gustav. And a footnote at the end of the quotation identified its source as that ABC radio broadcast in 2003. The complaint is that there was nevertheless plagiarism, because the applicant had found Sir Gustav's words not from a transcript of a radio program, but where they were quoted in the Cebon article.

[25] As to that last complaint, I am not persuaded that there is, even on an objective basis, any misrepresentation. In this instance there was no representation of Mr Cebon's work as the applicant's work. The only fault was the error in identifying the place where the applicant had found what Sir Gustav had said. In any case, this was not plagiarism because the applicant was not intending to disguise whatever contribution Mr Cebon could have claimed in relation to these words.

[26] I return then to the other particulars. In each instance, there was an insufficient attribution, or in many cases no attribution, to the Cebon article. But was this deliberate? Remarkably the applicant did make several references to Mr Cebon and his article (on my count there are three in the text and five in footnotes as well as in the bibliography). If this was plagiarism it was an unusual form because it sought to disguise the use made of a work whilst at the same time directing the examiner, in several places, to that very work. Not surprisingly the examiner did go to the Cebon article, and for the purpose, as appears from the examiner's handwriting on the assignment, of assessing the assignment rather than searching for plagiarism. A student in the applicant's position would think it not unlikely that the examiner would do that. And the Cebon article was not so lengthy that a student would consider that the examiner would not look at it. All of this makes it unlikely that the applicant was intending to pass off some of this work as his own (or as the work of others to whom he wrongly attributed some of these passages).

[27] Although the applicant heavily borrowed from the Cebon article, it should not be thought that there was little else in this assignment. It is not as if the entire assignment depended upon the use which was made of this material. Had there been due attribution, the overall impression on the examiner would have been less favourable. Nevertheless a substantial amount of apparently original work would have remained. It does not seem that it was necessary for the applicant to omit these attributions in order to present something which he could claim to be his essay.

[28] The submissions for the Board emphasise that some of these passages underwent a little editing in their reproduction by the applicant. For example, in one passage the applicant changed "FTA" to "AUSFTA", and in another he corrected a typographical error in the Cebon article. It is argued that it would have been easier to set out the passage as a quote than to edit it and that this points to an intention to disguise and misrepresent. I do not accept that submission. The editing certainly shows, as is evident anyway, that the applicant must have known that he was reproducing Mr Cebon's words. But the question is whether he intended that this would represent to the reader that it was his own work. In all the circumstances, particularly those discussed above at [26], his editing of some passages is not a strong indicator of plagiarism.

[29] The Board also suggests that there is an inconsistency between two explanations given by the applicant, respectively in his affidavits of 29 August 2006 and 8 January 2007, in relation to the Zoellick matter. There is a difference but it is not significant. It is unnecessary to discuss that in detail, but notably, the 2007 affidavit still mistakenly attributed to Mr Zoellick what was written by Mr Cebon. This fortifies the impression that the problem in this instance was that the applicant had misread Mr Cebon's paper, and thought that the relevant passage was something said by Zoellick, so that there was no need to refer to Mr Cebon.

[30] I conclude that in none of these instances did the applicant intend to pass of the work of another, Mr Cebon, as his own. I accept the applicant's evidence that these failures to give proper attribution to the Cebon article were the result of carelessness and his misunderstanding of what was required. I find that there was no plagiarism in this assignment.

[31] This was also in the subject International Trade Law and written in October 2005. Students were provided with an examination paper which they were to answer within a matter of days. The answers were due on 20 October. However the applicant was given a few days' extension because he needed another weekend to complete the work. He says that he prepared his answers hurriedly and without proper care and attention. That is apparent from the answers.

[32] The problems with this work came to light in this way. By mid-November the applicant realised that the assessment of his assignment, i.e. the assignment the subject of the Cebon allegations, had been withheld. So he emailed his lecturer to find out why. He was told that the lecturer had referred the assignment to the Chair of the Law School's Misconduct Committee. The applicant then contacted that person who told him that the lecturer had alleged plagiarism in his assignment. The applicant says that he then reviewed his assignment, along with his notes and the article by Mr Cebon, and that he saw that his assignment had a number of "referencing errors or mistakes". He again contacted the Chair of the Misconduct Committee and admitted that there were such errors in his assignment. He says that this prompted him to review other work which he had recently submitted for assessment. Although he says he did not have a copy of his answers to the take home exam, he says that he realised that there were similar errors within it. So on 21 November 2005 he wrote to the Chair of the Misconduct Committee to tell him that. At that stage he had not been formally advised of the allegations against him in relation to the assignment. And there had been no question raised about the take home exam. On 24 November 2005 the applicant received a complaint from the University about his assignment.

[33] After further correspondence, the applicant was advised by letter of 19 December 2005 that the lecturer's complaint of academic misconduct in relation to the assignment had been made out. That complaint involved effectively the same matters particularised by the Admissions Board. There were findings that the applicant had failed to use quotation marks or indenting in directly quoting from a source and that his assignment contained "extensive close paraphrasing of sources without appropriate acknowledgment". There was no specific finding however that this was done knowingly, or in other words, with an intention to pass off Mr Cebon's work as his own.

[34] In that same letter from the University, it was said that the applicant had "candidly disclosed the lack of the use of quotation marks and appropriate referencing in (his) take home exam once concerns were raised regarding (his) assignment". The letter advised that the plagiarism in the take home exam would be treated together with the plagiarism in the assignment as involving "one charge of academic misconduct", thereby resulting in a lesser penalty. The penalty which was imposed was that he was failed in the subject and excluded from enrolment in the Bachelor of Laws/Bachelor of Commerce program for six months. It should be noted that the applicant had not been provided with a complaint, let alone particulars of it, in relation to the take home exam. The University's finding of plagiarism was simply on the facts which he had volunteered.

[35] The first particular in relation to this work involves the alleged plagiarism of a five line paragraph which was part of his answer (of nearly four pages) to the first question. The question was a hypothetical problem for which students were asked to provide legal advice relating to the so called WTO Agreement. It required the examinee to discuss its terms. In doing that, the applicant included this paragraph:

The Agreement recognises through Article 27 of the Agreement that in light of the fact that subsidies play and important role in the economic development of developing country members, the Subsidies Agreement contains preferential measures in for developing countries, concerning red-light subsidies, remedies, dispute settlement, countervailing measures, and more.

The Board's particular is that this was a quotation, but without it being shown as such by quotation marks or even a reference to the source. The applicant says that it is a paraphrasing of Article 27 which appeared on a certain website the address of which he cannot recall. He volunteered to the University some shortcoming with this paragraph by writing of it: "Probably should state, x states that ' 'and footnoted." The paragraph may be compared with the words of Article 27.1, which provides that "Members recognise that subsidies may play an important role in economic development programs of developing country Members."

[36] Again the question is whether there was an intentional passing off of the work of someone else as the applicant's work. In my view there was not. It is significant that this was an answer to a legal problem; it was not an essay. Had the applicant made the attribution which the Board says was required, I do not see that it would have affected the assessment of his answer. He was to be assessed for his ability to identify the relevant terms and to apply them to the facts of the hypothetical problem, which it seems that he did.

[37] The next particular involves three paragraphs by which he began his answer to the second question. The question asked for legal advice to be given on a hypothetical problem concerning the WTO Agreement on Sanitary and Phytosanitary Measures ("the SPS Agreement"). His answer occupied three typed pages, and these paragraphs are little over half a page. They involve a summary of certain terms of the SPS Agreement. The Board's point is that these paragraphs had been reproduced word for word by the applicant from a speech given by a Mr Silverglade, without any apparent attribution to him. At the end of his answer to this question, the applicant identified three references: the SPS agreement itself, a certain web address where the applicant had found the agreement and a certain textbook. But after identifying these references the applicant typed "John [the examiner's first name] I used another source it was a speech given to the Wemos Foundation, but when I printed it off the net I transferred it to Word and didn't get the guy's name (Sorry)". In fact, Mr Silverglade's speech was delivered to the Wemos Foundation and it appears that "the guy" was Mr Silverglade. It seems to me that this was an attempt, although a very poor one, to identify his source. It was simply the result of carelessness and the hurried completion of this work. Again, the applicant had nothing to gain in not directly quoting Mr Silverglade. It was not an intentional passing off of that work as his own.

[38] Next there are five particulars which can be considered together. They involve the alleged misuse of a research note published by a Dr Burton. As in the case of the assignment and Mr Cebon's publication, Dr Burton's note was referred to, and more than once, in what the applicant wrote in answering the take home exam. The note was listed as the first of the references at the end of the relevant answer and there were many express references to Dr Burton in that particular answer. Again, the problem is that the extent of the attribution was inadequate. In these five instances complained of, the applicant either repeated Dr Burton's words or closely paraphrased them, without attribution. These allegations are similar to the Cebon matters, in that the alleged plagiarism is of a work which was not only identified by the plagiarist, but frequently cited in nearby passages of the applicant's work. That feature alone makes it unlikely that there was an intentional passing off. And further, like the assignment, this work demonstrates an inattention to detail in other respects, suggesting that in the respects complained of, it was carelessness which was the cause of the lack of attribution. For example, there is a passage which is attributed to another publication (by Drahos and ors) which was in fact extracted from Dr Burton's note. This is between two sentences each of which attributed what was there said to Dr Burton. It is clear enough that this incorrect attribution to other authors was not deliberate. There was no reason for the applicant to do that. This was simply poor work.

[39] Again the submissions for the Board refer to some of these instances involving some editing from the Burton publication. For similar reasons given above, that fact, in all the circumstances, is not so significant.

[40] The next particular had related to the last paragraph on page 10 of the work. But at the hearing the Board abandoned this allegation.

[41] The remaining particular concerns pages 12 and 13. This contained some close paraphrasing of a work by Aileen Kwa. She was not identified. But amongst the four references which the applicant identified at the end of this answer was a web address. In fact, at this address the Kwa article was published. In this case quotation marks were not required. But due attribution required more than simply a reference to the web address. There was nothing to be gained by not identifying the author: in fact the answer would have been improved by that. This was the result of poor work, not plagiarism.

[42] None of the allegations of plagiarism is proved. I find that in each case the failure to give proper attribution was the result of poor work and not an intention to pass off the work of another as the applicant's work.

[43] As to the alleged collaboration, I accept the applicant's evidence that he did not knowingly provide a copy of his assignment, or a draft of it, to the student who reproduced parts of the applicant's work. Accordingly, I find that there was not collaboration in that respect. As to other conduct which may have been significant in the University's determination of collaboration, the occurrence of that conduct is not controversial: I accept that there was cooperation in research and discussion as set out by the applicant in his letter of 4 December 2003.

[2] This is the applicant's description of the letter in para 111 of his affidavit filed 9 January 2007; the letter itself is not in evidence.