Reviews and Appeals Regulations 2012

The Council makes the following Regulations:
Dated: 5 March 2012

Part 1. Preliminary

1. Purpose

The purpose of these Regulations is to provide for reviews and appeals relating to academic and student affairs.

2. Authorising provision

These Regulations are made under the Governance and Administration Statute 2012 and sections 28, 29 and 30 of the Swinburne University of Technology Act 2010.

3. Definitions

In these Regulations—
academic misconduct decision has the meaning given to it in regulation 8;
appeal means an application that has been approved by the University Secretary and referred to an appeals panel in accordance with regulation 19;
application for review has the meaning given to it in regulation 13;
application for review of a decision means an application for review made under regulation 14;
Australian legal practitioner has the same meaning as in the Legal Profession Act 2004;
deemed refusal decision has the meaning given to it in regulation 12;
general misconduct decision has the meaning given to it in regulation 7;
reviewable decision has the meaning given to it in regulation 6;
reviewable administrative decision has the meaning given to it in regulation 9;
reviewable statutory decision has the meaning given to it in regulation 11;
review officer means a person appointed under regulation 4;
Schedule means schedule to these Regulations;
student complaint means a statement by a person expressing disagreement or dissatisfaction relating to conduct of the University in respect of the person at a time when he or she was a student, being a statement that requires action or response;
student unsatisfactory progress decision has the meaning given to it in regulation 10;
working day means a day other than a weekend, public holiday or University holiday. 

4. Appointment of review officers

The Vice-Chancellor must appoint review officers for the purposes of these Regulations.

5. Conduct of proceedings under these Regulations

  1. A person who considers an application or appeal under these Regulations must comply with the rules of natural justice.
  2. A person who considers an application or appeal under these Regulations
    1. must take into consideration any submission included in the application;
    2. may inform himself or herself as he or she thinks fit;
    3. is not required to notify the student or invite the student to make a further submission if
      1. at the time the student made the application the student was aware of the allegation; and
      2. the student had reasonable opportunity to make a submission about the allegation in the application; and
    4. is not required to act formally or to comply with the rules of evidence or procedure which apply to court proceedings.
  3. Parties to an application or an appeal
    1. subject to paragraph (b), may be represented at a hearing by another person; and
    2. may not be represented at a hearing by an Australian legal practitioner.

Part 2. Reviewable Decisions

6. Reviewable decisions

  1. A decision is a reviewable decision if it is
    1. a general misconduct decision;
    2. an academic misconduct decision;
    3. a reviewable administrative decision;
    4. a student unsatisfactory progress decision; 
    5. a reviewable statutory decision; or
    6. a deemed refusal.
  2. A decision is not a reviewable decision if
    1. the decision is made following consideration of a recommendation by the Ombudsman under regulation 24; and
    2. the decision is in accordance with the recommendation of the Ombudsman.

7. General misconduct decision

A decision is a general misconduct decision if it is a decision made about the general misconduct of a student under University regulations.
Example
A student engages in threatening behaviour. The student is suspended for the remainder of the semester. The decision to suspend the student is a general misconduct decision.

8. Academic misconduct decision

A decision is an academic misconduct decision if it is a decision made about the academic misconduct of a student under University regulations.
Example
A student cheats in an assessment task. The responsible staff member decides that the student will receive no grade for that item of assessment. That decision is an academic misconduct decision.

9. Reviewable administrative decision

A decision is a reviewable administrative decision if it is a final decision made by the University in response to a student complaint, other than a frivolous or trivial complaint.

Example 1
A responsible staff member imposes on a student, as the penalty for late submission of an assessment item, a reduction of 10% of the assessed mark for that item. The student complains that the penalty is too harsh. The responsible staff member considers the student’s complaint and decides to not alter the penalty. That decision is a reviewable administrative decision.

Example 2
A staff member sets a trial assessment task, the completion and results of which will not affect students' grades or be released to any other person. A student complains about the task. The staff member decides not to take any action in response to the complaint. The staff member's decision is not a reviewable administrative decision because the complaint is frivolous or trivial.

Example 3
A student complains to the Registrar about an initial refusal of special consideration. The student has not yet followed the University’s published policy and procedure on complaints but rather has applied immediately to the Registrar for a review. The initial refusal is not a reviewable administrative decision because it is not final.

10. Student unsatisfactory progress decision

A decision is a student unsatisfactory progress decision if it is a decision in respect of a student who has failed to maintain satisfactory academic progress.
Example
A student has failed several subjects in a program. The academic unit reviews the student's progress in the program and decides to exclude the student. The decision is a student unsatisfactory progress decision.

11. Reviewable statutory decision

  1. A decision is a reviewable statutory decision if it is a decision in respect of which University legislation or other legislation or an applicable Commonwealth or State regulatory framework allows or requires a right of review or appeal.
  2. However, a decision is not a reviewable statutory decision if it is a general misconduct decision, an academic misconduct decision, a student unsatisfactory progress decision, a reviewable administrative decision or a deemed refusal decision.
12. Deemed refusal
  1. There is a deemed refusal on the 21st working day after a person has applied for a decision and
    1. the decision, if it had been made, would be a reviewable decision affecting the applicant in his or her capacity as a student; and
    2. the University has not notified the applicant that the decision has been made.
  2. This regulation does not prevent a late decision being made in respect of an initial application.
  3. If, after an application is made for review of a deemed refusal, the University notifies the applicant that the initial decision referred to in subregulation (1) has been made, the applicant must
    1. withdraw the application for review of a deemed failure to decide; or 
    2. notify the Registrar that the application is to be treated as an application based on a ground under regulation 6(1)(a) to (e) which the applicant specifies in the notification.

Part 3. Review of Decisions

Division 1. Review process and outcome

13. Scope of this Part

In this Part, application for review means an application for review of a decision, made under regulation 14.

14. Application for review of a decision

  1. A person may apply for review of a decision if
    1. the decision was a reviewable decision affecting the person in his or her capacity as a student; and
    2. unless accepted under regulation 15, the application is made within 21 working days after
      1. the student has been notified of the decision; or
      2. the deemed refusal.
  2. An application for review of a decision must
    1. be made in writing in the form set out in Schedule 1;
    2. specify the grounds on which the applicant relies; and
    3. be lodged with the Registrar.

15. Acceptance of application by Registrar

  1. The Registrar may accept a late application for review of a decision, taking into consideration
    1. how late the application is;
    2. the reasons why it is late; and
    3. whether the delay has caused prejudice or will have an adverse effect on University administration.
  2. The Registrar must, if he or she determines that a decision is a reviewable decision, refer an application for review to
    1. a review officer; or
    2. two or more review officers for a joint decision.
  3. If an application is referred to two or more review officers, references in these Regulations to the review officer must be read as a reference to the review officers.
  4. The review officer must commence consideration of the application within 10 working days after the application is lodged.
  5. If the Registrar determines that the decision that is the subject of the application is not a reviewable decision, the Academic Registrar must, as soon as is practical, provide notification of that determination, with reasons to
    1. the applicant;
    2. the relevant academic unit or corporate unit.

Example
A student applies for a review of a decision. The Registrar determines that the decision was in response to a trivial complaint. The Registrar must give notification that the subject of the application is not a reviewable decision.

16. Review and decision

  1. Subject to regulation 17(7), the review officer to whom an application for review has been referred must make a decision within 21 working days after the application is lodged.
  2. The decision must be that the reviewable decision is
    1. affirmed;
    2. amended as set out in the decision; or
    3. set aside.
  3. The review officer, when making a decision, must include a statement of reasons for the decision.
  4. A statement of reasons may include recommendations arising from the consideration of the application, including recommendations for
    1. counselling;
    2. intervention;
    3. corrective or other measures that should be taken.
  5. The review officer must, as soon as is practical, provide notification of the decision and a copy of the statement of reasons to
    1. the applicant;
    2. the academic unit or corporate unit; and
    3. the Registrar.
  6. If requested and subject to any requirement or restriction
    1. under University legislation;
    2. under legislation; or
    3. at common law

    the review officer must provide a copy of any document which was taken into consideration in making the decision.
  7. A notification, copy of statement of reasons or copy of a document required under these Regulations may be provided by email or in other electronic format.

Division 2—Mediation

17. Reference to mediation

  1. This regulation does not apply to a student unsatisfactory progress decision.
  2. A review officer who is considering an application for review may, with the agreement of the applicant, at any time before the application is determined, refer the application to mediation.
  3. If the parties cannot agree on a mediator, the review officer must refer the issue to the University Secretary for appointment of a mediation panel.
  4. The University Secretary, after an issue has been referred under subregulation (2), must appoint a mediation panel comprising
    1. a senior academic or teaching staff member from an unrelated area, nominated by the chair of the Academic Senate; and
    2. a person appointed on the nomination of Swinburne Student Amenities Association Ltd or another student amenities body.
  5. The mediation panel must, as soon as is practicable after being appointed, conduct a mediation of the issues.
  6. The mediation is confidential, and discussions or statements made in, or in relation to, the mediation cannot be used in court proceedings.
  7. The calculation of time under regulation 16(1) does not include the period commencing on the day the application is referred to mediation and finishing on the day on which the mediation is concluded.

Part 4. Appeal

Division 1. Application

18. Grounds for appeal

  1. A person may apply to the University Secretary to appeal the decision of a review officer.
  2. An application to appeal must be on one or more of the following grounds—
    1. that there is relevant evidence that—
      1. was not taken into consideration by the review officer; and
      2. which could not have been known by the person prior to the review;
    2. that the decision was manifestly wrong;
    3. a procedural irregularity occurred which may have affected the review officer's decision;
    4. that a penalty imposed on the person was manifestly excessive;
    5. that the review officer failed to make a decision within the time required by regulation 16(1).
  3. An application to appeal must be—
    1. in writing in the form set out in Schedule 2;
    2. subject to subregulations (4) and (5), lodged within 21 working days after the person was notified of the decision.
  4. For the purposes of an appeal under subregulation (2)(d), the review officer is deemed to have affirmed the reviewable decision.
  5. The University Secretary may accept a late application for appeal, taking into consideration—
    1. how late the application is;
    2. the reasons why it is late;
    3. whether the delay has caused prejudice or will have an adverse effect on University administration.

19. Decision by University Secretary

  1. The University Secretary must commence consideration of the application within 10 working days after the application is lodged.
  2. The University Secretary must determine the application informally and without conducting an oral hearing.
  3. Following consideration of the application, the University Secretary must decide—
    1. to disallow the application, for reasons stated in writing;
    2. to refer the issue back to the head of the academic unit or corporate unit in which the decision was made for reconsideration by the appropriate person or body;
    3. to allow the application and refer the application for consideration by an appeals panel.
  4. The University Secretary must, as soon as is practical, provide notification of the decision and, if the application is disallowed, the reasons why it is disallowed to—
    1. the applicant;
    2. the academic unit or corporate unit; and
    3. the Registrar.
  5. If the University Secretary refers an issue to the head of the academic unit or corporate unit in which the decision was made for reconsideration—
    1. the appropriate person or body must, within 21 working days after the referral, reconsider the decision and notify the applicant, the head of the academic unit or corporate unit, the Registrar and the University Secretary of the outcome of that reconsideration; and
    2. the University Secretary must, after being notified of the outcome of the reconsideration, confer with the applicant as to whether the applicant wishes to proceed with the application.

Division 2. Appeal hearings

20. Application of this Division

This Division applies where the University Secretary allows an application under regulation 19.

21. Reference to an appeal panel

  1. The University Secretary must, within 10 working days after allowing an application, refer the application to an appeal panel.
  2. An appeal panel must comprise not more than three persons, including—
    1. at least two University staff members appointed by the University Secretary; and
    2. if it is practicable, taking into consideration availability and time constraints, not more than one student appointed by the University Secretary.
  3. A University staff member appointed under subregulation (2)(a) must not be—
    1. a person who works in the academic unit or corporate unit in which the reviewable decision was made; or
    2. a person who was a member of a mediation panel appointed under regulation 17 in relation to the reviewable decision.
  4. The University Secretary must appoint one of the appeal panel appointed under subregulation (2)(a) to be the chair of the panel.
  5. The University must provide administrative support to appeals panels. 

22. Hearing

  1. An appeal may be determined with or without an oral hearing.
  2. A hearing may be conducted in any format considered appropriate by the University Secretary.
  3. In deciding whether an appeal is to be determined with or without an oral hearing, the University Secretary may take into consideration—
    1. whether the parties are able to participate in an oral hearing within a reasonable time;
    2. whether an oral hearing would unnecessarily subject a party or a witness to stress; and
    3. any other relevant factor.
  4. The chair of an appeals panel, in consultation with the University Secretary, must decide how the appeal is to be conducted.
  5. At an appeal in relation to penalty, the appeal panel must consider only the question of penalty.

23. Decision

  1. Following consideration of an appeal, an appeals panel must decide to—
    1. disallow the appeal, for reasons stated in writing; or
    2. to allow the appeal and—
      1. if the appeal is in relation to penalty, substitute a different penalty; or
      2. in any other case, substitute its decision for the original decision.
  2. When making a decision the appeals panel may include recommendations arising from the consideration of the appeal, including recommendations for—
    1. counselling;
    2. intervention;
    3. corrective or other measures that should be taken.
  3. The chair of an appeals panel must, as soon as is practicable after a decision is made, advise the applicant, the relevant academic unit or corporate unit and the Registrar of—
    1. the decision and the reasons for it; and
    2. (in the case of the notification to the applicant) the applicant’s right to apply for external review of the decision.

Part 5. External Review

24. Application for external review

  1. A person may apply to the Ombudsman for review of—
    1. a decision by the University Secretary not to allow an appeal by the person; or
    2. a decision by an appeals panel in relation to an appeal by the person.
  2. A review under this regulation shall be conducted in accordance with the Ombudsman Act 1973.
  3. If the Ombudsman recommends that the decision be amended or cancelled, or that another decision be made, the University must—
    1. give consideration to that recommendation; and
    2. notify the student of the outcome of its consideration and the reasons for it.