Discipline Rule 2021

The Rule applies directly to every person who is or was enrolled in a program or course at the University, as well as those seeking enrolment or who have been given permission to audit a program or course (s 4 and the definition of “student” in s 5). The phrase “was enrolled” means former students can still be pursued for conduct that occurred while they were enrolled. The Rule also affects complainants - persons who report misconduct or who are affected by it in their capacity as students (s 10(3)). They may be kept informed of the progress and outcome of proceedings, though this is discretionary: the Vice-Chancellor or prescribed authority may tell the complainant about action taken, reasons, outcomes and any review proceedings (s 11). The Rule imposes duties on University officers and employees: the Vice-Chancellor, prescribed authorities, the Registrar, and members of panels appointed by the Vice-Chancellor are all required to exercise powers and follow procedures. The prescribed authority must make initial decisions, conduct inquiries, give notices, and report actions to the Vice-Chancellor (ss 12, 14, 15, 34). The Vice-Chancellor has parallel powers and also possesses the special power to “call in” decisions made by others if they are considered inappropriate, effectively overriding the original decision-maker (s 51). Heads of halls of residence or lodges are prescribed authorities for residents (s 5). The Rule also affects third parties who provide financial support to a student: under s 47, a third party may undertake to meet a student’s obligation, but the student remains personally liable if the third party fails to do so. The University’s student associations and staff are indirectly affected because they may be involved in reporting misconduct or acting as witnesses. The interests of the broader University community are protected through the wide definition of misconduct in s 7(2), which includes conduct that unreasonably hinders other members in the pursuit of their studies or research. Finally, external organisations such as professional bodies, government agencies or other institutions may be notified of findings and sanctions at the discretion of the prescribed authority or Vice-Chancellor (ss 34(2)(h), 37(2)(m)).

The primary duty is imposed on every student: not to engage in misconduct (s 7(1)). This duty is absolute in the sense that non-compliance triggers the disciplinary processes. A person who becomes aware of possible misconduct may report it to the Vice-Chancellor or a prescribed authority (s 8). There is no duty to report, but the Rule allows the Vice-Chancellor or prescribed authority to act even in the absence of a report if they consider that a student may have engaged in misconduct (s 9). Once proceedings commence, the respondent has a right to notice. Under ss 15 and 21, the respondent must receive a written notice that includes a description of the conduct, the purpose of the inquiry, the name of the person conducting it, copies of material to be relied on, and the time and place of the hearing. The notice must be given at least five working days before the hearing unless the respondent agrees to a shorter period. The respondent has the right to appear in person at the inquiry, to present oral and written statements, to be accompanied by a nominated person who may observe and, with the presiding officer’s express approval, act as an advocate (s 26). The respondent also has the right to apply for remote participation by teleconference or videoconference, which the presiding officer may permit or, in limited circumstances, require (s 27). The respondent must be given the opportunity to comment on all material on which the inquiry intends to rely (s 26(3)). If the respondent does not appear, the inquiry may still proceed in their absence (s 30(5)). In addition, the respondent may make a written submission against any interim action (ss 17, 23) or against a direction for immediate suspension (s 43). The respondent has the right to reasons for decisions that confirm interim action or impose a sanction (ss 17(5), 23(5), 38(3)(c), 43(5)). Finally, the respondent has a right to internal review of reviewable decisions under the Appeals Rule (s 49, 50), which includes findings of misconduct and the sanctions imposed. The respondent also has a right to request an extension of time for any time limit under the instrument, which the relevant University official must consider taking into account reasons for the extension, the period sought, and any prejudice that granting the extension would cause (s 53).

The Rule provides a graduated set of sanctions for misconduct, separated by the level of decision-maker. A prescribed authority after finding misconduct may do any one or more of the following: take no action, reprimand the respondent, deny access to University facilities, premises or activities for a period not exceeding 12 months, suspend candidature or enrolment for a period not exceeding 12 months, impose conditions on continuing studies, require an apology or other remedial action, accept an undertaking (such as attending counselling), notify external organisations, or refer the matter to the Vice-Chancellor (s 34(2)). The Vice-Chancellor has broader powers, including all of those available to a prescribed authority, plus the ability to impose a monetary penalty of not more than $500 for each occurrence of misconduct (s 37(2)(f)), require compensation for damaged property or for expense, loss or harm incurred (s 37(2)(g)), exclude the student from the University (s 37(2)(j)), determine that an award should not be conferred (s 37(2)(k)), or revoke an award already conferred (s 37(2)(l)). The Vice-Chancellor may also deny access for a period longer than 12 months (s 37(2)(c)). When deciding what action to take, the decision-maker must take into account the nature and severity of the misconduct, its effect, the objectives of punishment, deterrence and rehabilitation, and the health and safety of students and staff (ss 34(3), 37(3)). Past findings of misconduct may also be considered. In addition to sanctions for misconduct, Part 6 of the Rule creates enforcement mechanisms for failures to meet obligations. The Vice-Chancellor may terminate enrolment, deny access, or withdraw rights and privileges if an obligation (including monetary debts to the University, fees, accommodation charges) remains unmet 10 working days after the due date (s 46). The Vice-Chancellor may also direct that a student cannot enrol, receive transcripts, receive results, or be awarded a degree while the obligation remains outstanding (s 48). These sanctions are separate from the misconduct process and do not require a finding of misconduct. Interim action may be taken before an inquiry is completed. A prescribed authority may deny access for up to 20 working days (subject to Vice-Chancellor extension) or exclude a student from an assessment if the student is likely to have engaged in misconduct, but only if there is risk of serious harm to a person or serious loss, damage or reputational harm to the University, or to preserve assessment integrity (ss 16, 22). The Vice-Chancellor may impose interim denial of access for a specified period or until the inquiry is completed (s 22(2)(a)). Immediate suspension of enrolment may also be directed on the same grounds, with the suspension taking effect immediately rather than after the appeal period (ss 42(3), 43). The Rule provides that sanctions continue to have effect even if a review application is made under the Appeals Rule (ss 39(3), 40(3), 45(3)).

The Discipline Rule 2021 is made under the Australian National University (Governance) Statute 2020, s 68(1). It operates as part of the University’s legislative framework. Section 54 expressly provides that the Rule is additional to any other University legislation that deals with student conduct. This means that a student’s conduct may be dealt with under multiple instruments concurrently. For example, conduct relating to information infrastructure may also be addressed under the Information Infrastructure and Services Rule (see notes to ss 16 and 22). The Rule enables proceedings under other University legislation to proceed by allowing the prescribed authority or Vice-Chancellor to suspend an inquiry under this Rule while the other process is underway (s 54(2)). The definition of sexual harassment in s 6(1) mirrors the definition in the Sex Discrimination Act 1984 (Cth), s 28A(1), aligning University disciplinary standards with federal discrimination law. The definition of sexual assault in s 5 includes examples that reference offences against the Crimes Act 1900 (ACT) (sections 54, 60, and examples in s 7(3) reference further offences such as non-consensual distribution of intimate images). This means that conduct that constitutes a criminal offence may also be dealt with under this Rule, and the Rule does not require that criminal proceedings be finalised before the University acts. Indeed, the existence of a criminal investigation or prosecution is listed as an example of a circumstance that may make it inappropriate to take action for the time being (ss 12(3)(b) example 2, 18(3)(b) example 2), but it does not permanently bar University action. The Rule also interacts with the Appeals Rule, which is the mechanism for internal review. Section 49 defines the decisions that are reviewable, and s 50 provides that the Appeals Rule governs the review process. The Rule does not preclude external legal remedies: a student may still have rights under anti-discrimination law, tort law or criminal law independent of the disciplinary process. The transitional provisions (Pt 9) deal with the repeal of the Discipline Rule 2020 and provide that the old rule continues to apply to conduct before 1 December 2021 (s 56). The Legislation Statute (ss 26, 22, 24) and the Acts Interpretation Act (as applied by the Legislation Act) govern the interpretation, service of documents and extension of time provisions (ss 53, 58, 59). Joint, double or dual programs with other institutions are addressed by s 52, which provides that provisions of this Rule have no effect to the extent they are inconsistent with an agreement between the University and another institution regarding such programs.

The Discipline Rule 2021 was made by the Vice-Chancellor on 15 July 2021. It commences on the commencement of the Academic Integrity Rule 2021 (s 2). This is a new instrument that replaces the Discipline Rule 2020, which is repealed by s 55. The Rule is made under s 68(1) of the Australian National University (Governance) Statute 2020, which confers a general power to make rules and orders. The Rule contains its own transitional provisions in Part 9, Division 9.2. Section 56 provides that the Rule (other than Division 9.2) does not apply to conduct engaged in before 1 December 2021; instead, the repealed Discipline Rule 2020 continues to apply to that conduct. This means the 2021 Rule is prospective from 1 December 2021 for conduct. Section 57 empowers orders made under the Governance Statute to prescribe transitional matters relating to the repeal of the 2020 Rule or the making of this Rule, and such orders can override provisions of this Rule itself. Section 58 applies the general repeal provision of the Legislation Statute (s 26) to the repeal of the 2020 Rule, and section 59 confirms that the transitional provisions are additional to and do not limit the Legislation Statute or the Acts Interpretation Act provisions on repeal. The instrument itself does not contain any subsequent amendment history within its text; any future amendments would need to be made by further rules or orders under the Governance Statute.

The Discipline Rule 2021 does not itself refer to any specific litigation or court cases. The instrument is an internal University rule, and its provisions for review are internal: reviewable decisions are to be reviewed under the Appeals Rule (s 50). The Appeals Rule provides for an internal committee to review discipline decisions, and that process is not judicial. Consequently, there is no reference in the Rule to any external court or tribunal proceedings. The absence of any case citation in the instrument is consistent with its character as subordinate legislation of a statutory authority. However, it is possible that decisions made under this Rule (or its predecessor) have been challenged in the ACT Civil and Administrative Tribunal or the Federal Court on administrative law grounds, but the instrument itself does not record such history. Users of this deep dive should be aware that the internal review mechanism and the potential for judicial review for jurisdictional error, denial of procedural fairness, or breach of natural justice exist independently of the Rule. The Rule’s own provisions on inquiry procedures (informality, no binding rules of evidence, power to proceed in the respondent’s absence) and the broad discretion of decision-makers could give rise to litigation if a student alleges that the process was unfair or that a decision was unreasonable. The Rule does contain procedural safeguards such as notice, the right to be heard, and the right to reasons, which are designed to reduce the risk of successful judicial review. Practitioners should also note that the definition of sexual harassment in s 6(1) is drawn directly from the Sex Discrimination Act 1984 (Cth), so interpretations of that definition by courts and tribunals in discrimination cases may inform its application in the University setting.

Several features of the Discipline Rule 2021 are potential traps for the unwary. Broad definition of misconduct: s 7(2) includes conduct that is “reprehensible conduct for a member of the University community to engage in.” This is a very low threshold, and it is not limited to conduct that breaches a specific rule. The provision operates as a catch-all that could capture behaviour the student did not know was wrong. Low evidential threshold for initiating action: a prescribed authority or the Vice-Chancellor may decide to act based on a mere suspicion that a student “has, or may have, engaged in conduct that is misconduct” (ss 12(1), 18(1)). The initial decision can be made in a summary way without any hearing or submission from the student (ss 13, 19). Informal inquiries: the person or panel conducting the inquiry is not bound by the rules of evidence and may be informed in any way they consider just (s 30(2)). This means hearsay, opinions and unsworn statements can be considered. Interim action without a final finding: a prescribed authority or the Vice-Chancellor can deny access to premises or facilities, or exclude a student from an assessment, before any inquiry is held, if the student is “likely to have engaged” in misconduct (ss 16, 22). The threshold is low: the decision-maker need only be satisfied that the student is “likely to have engaged” in misconduct, not that they actually did. Immediate suspension without review: a suspension from a program or course does not take effect until the appeal period expires unless the decision-maker directs immediate suspension (s 42(3)). That direction can be given on the same threshold of “significant risk of serious harm” (s 42(4)). The student can make a submission within five working days, but the suspension is already in effect (s 43). No right to legal representation as advocate: the respondent may be accompanied by a nominated person who may observe and, “with the express approval of the presiding officer, act as an advocate” (s 26(1)(c)(ii)). There is no automatic right to have a lawyer act as an advocate; the presiding officer has discretion to approve or refuse. Time limits are tight: the respondent has only five working days to give a written submission against interim action (ss 17(3), 23(3)) or against immediate suspension (s 43(3)). Extensions are possible (s 53), but must be applied for promptly. Interim action continues despite appeal: denial of access and exclusion from assessment continue to have effect even if the student applies for review under the Appeals Rule (ss 39(3), 40(3)). Vice-Chancellor can “call in” decisions: even if a prescribed authority decides to take no action, or makes a lenient decision, the Vice-Chancellor can call in that decision for reconsideration and substitute their own decision, provided no appeal has been lodged (s 51). This means a student who thought a matter was resolved may find it revived at a higher level. Monetary penalty cap is low but compensation is unlimited: the maximum fine is $500 per occurrence (s 37(2)(f)), but the Vice-Chancellor can require compensation for damage, expense, loss or harm without a stated limit (s 37(2)(g)). Failure to meet obligations can also trigger sanctions without a finding of misconduct: Part 6 (ss 46-48) allows the Vice-Chancellor to terminate enrolment, deny access, withdraw rights, and refuse transcripts or awards solely on the basis that a debt or other obligation is overdue, with no need to prove misconduct.

For a student subject to the Discipline Rule 2021, compliance begins with understanding what constitutes misconduct. The safest approach is to avoid any conduct that is dishonest, unethical, violent, threatening, indecent, harassing, discriminatory, or that unreasonably hinders others. Students should familiarise themselves with the University’s Strategic Plan (which sets values) and the Student Code of Conduct (which sets responsibilities, as noted in the notes to s 7(2)). When enrolled, a student should treat all University premises, resources and events with respect, and comply with all lawful orders and directions from University officers. If a student receives a notice under s 15 or s 21 that an inquiry is to be conducted, the most critical response is to act within the stated time frames. The respondent must notify the presiding officer within five working days of receiving the notice if they intend to provide written statements (s 15(4)(h), s 21(4)(h)). The respondent should read the notice carefully: it includes the time and place of the hearing and a list of the material on which the inquiry will rely. The respondent should gather any evidence or statements that support their version of events. The right to be accompanied by a nominated person is valuable - that person can observe and, with permission, act as an advocate. If attending in person is difficult, the respondent should apply for permission to participate remotely under s 27. The respondent should consider whether to seek an extension of time under s 53 if the deadlines are too tight; the application should explain the reason for seeking the extension, the period sought, and why no prejudice will result. If interim action is taken (denial of access or exclusion from an assessment), the respondent has five working days to make a written submission requesting that the decision be varied or ended (ss 17(3), 23(3)). That submission should address the grounds for interim action: for example, arguing that there is no serious risk of harm, or that the exclusion from assessment is not necessary to preserve integrity. If a monetary penalty is imposed, the respondent must pay or arrange a payment plan within 20 working days after the expiry of the appeal period or after the appeal is finalised (s 44). The student should also ensure all obligations (fees, accommodation charges) are met on time to avoid sanctions under Part 6. If a debt cannot be paid, the student should negotiate a payment arrangement with the University before the 10-working-day deadline. If an undertaking is given (such as to attend counselling), it must be complied with (s 41). Any breach of a condition or undertaking can lead to the imposition of a more severe sanction. Finally, if the student is dissatisfied with a finding of misconduct or a sanction, they should apply for review under the Appeals Rule within the time limits set out in that Rule. The review application must be lodged in the proper form and address the reasons why the decision was wrong.