Procedural fairness and natural justice
1. It is the role of the Chair of a Termination Appeal Panel (TAP) considering a termination appeal to ensure procedural fairness, or natural justice, to all parties involved. Procedural fairness is concerned with the process used to reach a decision, rather than the actual outcome reached. It requires that a fair process be used to reach a decision.
2. Procedural fairness consists of three broad principles:
- The student must have notice of the case to answer and a reasonable opportunity to prepare a response;
- The student is provided with an adequate opportunity to present their response; and
- The panel is to make reasonable inquiries before making a decision, and acts in good faith. This includes a freedom from bias, or the appearance of bias, and to make a decision based on a balanced and considered assessment of the information and evidence placed before it.
3. A decision by a TAP must be based upon evidence and not on speculation or suspicion. The standard of proof that the panel would be satisfied with is based on a balance of probabilities.
Powers of the Termination Appeal Panel
4. The Chair should ensure that the panel has sufficient information from the student and the APRP or MRP and any other person with relevant information to make a clear and informed decision. The TAP may determine an appropriate procedure for making enquiries and receiving relevant information and submissions.
5. Where it is appropriate to give a student the opportunity to improve his/her performance or behaviour within reasonable time frames, this should be reflected in the written notification to the student.
6. The TAP may receive sensitive information. Throughout the process the TAP should take steps to ensure respect for the sensitivity of this information by release on a need-to-know basis. However, procedural fairness requires the Chair of the TAP to inform those involved of the main points of any allegations or grounds for negative comment, and provide them with a reasonable opportunity to put forward their response, whether in writing or orally, at a hearing.
7. The Chair should establish an appropriate timeline for resolution of the case based on the complexity of the issues involved. It is in the interests of all the parties concerned to ensure a timely consideration of the issues raised. All affected parties should be kept informed of the anticipated timelines for a decision and be notified if there is going to be any significant delay to the process.
Hearing date and time
8. A hearing date and time will be arranged when the TAP convenes to decide the appeal. This may be a hearing where appropriate. Where there is a hearing, it is expected that the student and academic unit/faculty representatives will make themselves available for the hearing. If there are extenuating circumstances, a request for a reasonable deferral of the hearing date may be made. Requests for deferral will be considered on a case by case basis. In normal circumstances, and provided the members of the TAP are available, this deferral should be no more than 10 working days. Only in exceptional circumstances would a second deferral be considered.
9. Generally, where the TAP hears evidence in person from any witness, the parties involved in the case should have an opportunity to be present. Where a person involved in the case has been given the opportunity to be present at a hearing, but decides not to attend, the panel may hear from witnesses in that person's absence.
10. Where possible and practical, the hearing should not be scheduled at a date and time which conflicts with the requirements of a strict religious observance obligation by a student or staff member who has identified to the University that this religious observance forms an obligatory part of their religious belief, in accordance with the Guidelines to Accommodate Students and Staff with Strict Religious Observance Obligations (Australia). The Faith Communities Council of Victoria publishes a Multi-faith Calendar which can be used as a reference for staff and students.
Support for the student
11. The student may be accompanied and assisted by another person who is not legally qualified, unless that person is an officer of a recognised student association connected with the student's campus. The student is not to be represented by this person.
Academic unit/faculty representation
13. The academic unit/faculty may determine who will represent them and present their case at the TAP Hearing.
14. The Chair may determine those people best placed to provide evidence to the TAP and answer questions in relation to the student's case (referred to in these guidelines as the witnesses).
15. The academic unit/faculty representatives and witnesses should be contacted and asked to attend the hearing.
Format for the hearing
16. Where the TAP is aware that the student is registered with the University's Disability Support Services, reasonable adjustments should be applied to the format and conduct of the hearing where appropriate. Reasonable adjustments enable people with disability to participate in the work and study environment along with their peers.
17. Reasonable adjustments in the university environment refer to measures or actions taken to ‘level the playing field', enable students with disability to participate on same basis as other students and reduce the impacts of their condition on their studies.
18. Staff should consult with the Disability Support Services where advice or assistance is required to determine whether reasonable adjustments are required and/or the form in which they might take.
19. The Chair should establish an appropriate format for the hearing, ensuring that both the student and the academic unit/faculty have a reasonable (but not unlimited) opportunity to present their case and respond to questions from panel members. Appropriate time frames should be set for all parties to present their case.
20. The student, the academic unit/faculty representatives and panel members should be advised of the format and proposed time frames by way of a formal Order of Proceedings.
21. All documents relating to the hearing should be provided with the Order of Proceedings 5 working days prior to the hearing date. It is the student's responsibility to provide copies of the documentation to a support person who is to accompany him/her.
22. The suggested format for a hearing includes:
Initial discussion of the panel
- The Chair should brief panel members of the format and invite them to ask questions of the student, academic unit/faculty representatives and witnesses should they require clarification at any time during the hearing.
- Academic unit/faculty representatives, other than those who are members of the panel, must not attend or take part in any initial discussions the TAP may have prior to the commencement of the hearing.
Invite student/students adviser and academic unit/faculty representatives to join the hearing
- The Chair should explain the standard of proof required to satisfy the panel before a decision will be made. The Chair should ensure that all questions from the student and academic unit/faculty representatives are addressed through the Chair.
- Neither party should directly address their comments or questions to the other party and should be advised accordingly at the commencement of proceedings. The Chair may relax this requirement throughout the hearing, should they decide that communication between the parties is appropriate and constructive
- The student, if he or she chooses to be in attendance, should be invited to present his/her case, respond to matters raised by the academic unit/faculty representatives, and answer questions from the panel members.
- The student's case should outline the evidence and be relevant and concise in format.
- The academic unit/faculty representatives may be present.
Academic unit presentation
- Academic unit/faculty representatives should be invited to present their case, respond to matters raised by the student, and answer questions from the panel members.
- The academic unit's case should outline the evidence and be relevant and concise in format.
- The student and their support person may be present at this presentation.
- The student should be given a brief opportunity to respond to any new matter raised in the academic unit presentation.
Concluding discussion of the Panel
- The TAP should then again meet alone to consider the evidence and submission presented and make final determinations with regard to the student's appeal, within specified timelines, as appropriate.
- There will be circumstances where the panel may need to reconvene. Such as if further information is needed, or additional people need to be contacted for clarification. The Chair may feel that the student is not in a position to continue at the initial hearing, or all could benefit from a 'time-out'. In these circumstances it is better to draw the hearing to a close and reconvene at another time.
Documentation of Proceedings
19. A professional staff member from MGE will act as Secretary to the panel and take comprehensive notes of the proceedings, which will be available to the panel members. These are working notes for the panel and will not be made available to the student and the student's support person or academic unit/faculty representatives.
23. The Secretary assists the TAP but plays no role in the decision making itself.
24. The determination of the TAP is final.