New technology enables students to generate content by the use of (so-called) artificial intelligence. We still remember the old rubric rubbish in, rubbish out - but maybe technology has moved on. If it has, there is potential for students to create assessment material which incorporates unique, computer-generated content which evades detection by anti-plagiarism software.

The Guardian (Australian edition, 10 January 2023) reports that the University of Sydney’s latest academic integrity policy now includes “generating content using artificial intelligence” as a form of cheating. The Guardian also reports that the Group of Eight’s deputy chief executive, Dr Matthew Brown, has indicated that G8 universities are revising their plans for assessment in 2023. This may include greater use of pen and paper exams and tests.

If this happens the old will become the new - existing rules about the conduct of in-person supervised examinations will acquire a new currency.

Enrolment practices were in the spotlight in the recent decision (3 December 2021) of the Federal Court in the case ACCC v Australian Institute of Professional Education Pty Ltd (In Liquidation).  The respondent (AIP) encouraged people to enrol in its courses, using commission-remunerated sales agents.  It engaged in exploitative sales practices, offering free laptop computers as an incentive.  It failed to inform applicants that they would be incurring debts, and it targeted consumers who had a high risk of being unsuitable for the courses being sold.  The Court imposed a penalty of $153 million, saying:

Substantial penalties are called for when a commercial enterprise systematically predates on both a government education support scheme designed to help disadvantaged members of the Australian community, and, consequently, upon those consumers.

The ACCC put it to the Court (and the Court apparently accepted) that there was “no adequate and effective culture of compliance, and indeed an active culture of non-compliance.”

This is all very different from the behaviour of public universities.  It does, however, raise the interesting question of what regulatory issues arise in relation to enrolment practices.  There are potentially several - but we mention three:

• consumer protection:  the Federal Court found that AIP had engaged in a system of unconscionable conduct in enrolment practices.  This is an offence under the Competition and Consumer Act 2010 (Cth);

• administrative law:  statutory decision-makers should make decisions based on relevant considerations, and should not take into account irrelevant considerations.  In 2011 the Vice-Chancellor of the University of Queensland resigned following a decision to admit a student who did not meet all the requirements for the course and who was a relative.  It is good practice (if only for administrative law reasons) for admission criteria to be clearly set out and consistently applied;

• registration with the Commonwealth:  Registration under the Commonwealth Tertiary Education Quality and Standards Agency Act 2011 requires registered higher education providers to meet the Standards set out in the Higher Education Standards Framework (Threshold Standards) 2021.  The first of the Threshold Standards deals with admissions.  Students are to be informed of their rights and obligations, including all changes and policies on withdrawal from offers, acceptance and enrolment.  Admissions requirements, policies and procedures are to be “applied fairly and consistently.”

The Federal Court has granted orders to block access to academic cheating services, giving effect to recent legislative reform by the Commonwealth. See: TEQSA v Telstra Corporation Ltd [2021] FCA 1202 (7 October 2021). The legislative reform was implemented by the Tertiary Education Quality and Standards Agency Amendment (Prohibiting Academic Cheating Services) Act 2020 (Cth).

Bravo to TEQSA.

And Bravo to us, we have started a Universities lexicon page, with academic cheating as its first entry.

University administrators do not have to be all things to all people. But they do have to comply with many requirements. This is nowhere more apparent than complaint, review and appeal processes. There are external complaint and review processes, and - if Commonwealth Standards and Codes are to be implemented - internal complaint, review and appeal processes.

Complex? There are overlapping requirements - similar but not the same - time limits and performance standards to be met. And who could forget Complaint Handling at Universities: Australasian Best Practices Guidelines (2016)?

We take a look at these issues in our September 2021 Duncan Lawyers Newsletter.

Decisions by university administrators frequently affect individual students, for example decisions dealing with admission, credit transfers, intermission, exclusion, results, special consideration and the awarding of results.  If those decisions are to be effective there must be a source of power.

Power to make decisions derives, ultimately, from the Act of Parliament that establishes the university.  This includes even the power to exercise the powers of a legal person, such as the power to enter into contracts, because the university’s status as a legal person is conferred by the Act.

Tracing the authority to exercise the University’s powers

Each university is established by an Act of Parliament, which is the ultimate source of power of university officers and committees.  The supreme decision-making body of a university is its Council, which can act (by making decisions) whether or not other persons or bodies also have authority to make decisions.  There are two ways in which authority to make decisions can be conferred on a university officer or committee—

1. by delegation, under a delegation power set out in the Act. For example, the University of Melbourne’s Council is empowered (by section 18 of the University of Melbourne Act 2009) to delegate to an officer, member of the Council, a committee of the Council the academic board or other entity prescribed by a university statute;

2. by conferral of the power by a university statute or regulation on a university officer or a committee.

Accountability for the exercise of power

An officer or committee does not have power to act, unless that power is conferred by legislation or lawfully delegated to the officer or committee under the legislation. Powers are always limited, expressly or by implication from the purpose or scope of the instrument which confers them.

If someone purports to make a decision without being authorised, the invalidity of the decision cannot be cured by having it “ratified” by a superior officer or committee. The superior officer or committee would have to make a new decision, turning its mind to all the things that are required for a valid exercise of their decision-making power.

The courts have power to review an administrative decision purportedly made under an Act, and to set aside the decision if it is found to be unlawful.  The power is only exercised on the application of a person affected by the decision (typically, the student to whom the decision relates).  An application must allege a particular kind of legal error that is recognised as a ground for judicial review, for example that the decision—

• was not authorised by the legislation or a delegation made under the legislation;

• was made by the wrong person or body;

• was made beyond the limits of the power;

• was made by an improper process;

• took into account irrelevant considerations;

• was taken at the direction of another person or body;

• was based on an inflexible application of a policy;

• was made in breach of the rules of natural justice; or

• was so unreasonable that no reasonable decision-maker would come to it.

If a court finds legal error and sets the decision aside, it will generally direct the university to make a new decision according to law.  Only the decision that was challenged in the application is directly affected, but a finding that a decision is invalid calls into question all other decisions made by the University which are affected by the same error.

What can be done by policy?

An officer or committee making a decision must be properly authorised by a legislation or by a delegation of authority made under legislative authority. The power cannot be given by a policy: a policy is an administrative, not legislative, instrument.

Legislation granting a power may either create a rule for the exercise of the power, or confer a discretion (giving the decision-maker a choice). Discretionary powers are often indicated by words like “may”.  Rules are often indicated by words like “must”.

Where the legislation confers a discretion, administrative law principles affirm that it is appropriate for the agency (the university) to develop administrative policies to guide decision makers in exercising the discretion, since this makes their decisions more consistent and transparent.

A policy can properly set out general principles, relevant considerations and guidance on how to weigh different considerations and what inquiries to make.  However, a policy must not “fetter” the discretion by attempting to convert it into a rule.  One of the legal errors that provides a ground for judicial review is applying a policy inflexibly without due regard to the circumstances of the case. Another error which would provide a ground for review would be that a decision maker, in having regard to an unlawful policy, took into account an irrelevant consideration.

Implications for policy development

It is desirable that universities know what discretions they have, and, generally, it will be desirable that policies be established to guide the exercise of those discretions. However–

• policies should not fetter a discretion, for example specifying that a decision maker must reach a particular decision;

• policies cannot be a source of power to make decisions.

The public universities of Australia are created by laws enacted by Australian parliaments: their legal personality comes from the Acts by which they are created.  In this they resemble many other statutory entities, having power to enter contracts, employ people and to sue and be sued. The power to do these things can be exercised by their supreme decision-making bodies (university councils) or by others on whom decision making-power has been conferred by legislation or delegation.

There is something else that public universities can do – they can make laws, or, more specifically, subordinate (or “secondary”) legislation.  This provides universities with a regulatory power, additional to their power as legal entities to regulate their staff under employment contracts or their students under (for want of a better name) education contracts.

We explored this topic in our February 2015 Newsletter, looking at the hierarchy of legislation (and asking, “what are regulations good for”). We looked at university governance instruments, some of their important features and the entities responsible for making them.  The Newsletter can be downloaded from our Newsletters page.

University governance instruments

University Act:  Legal status of the university, including powers and objectives. Specific restrictions on powers.  Responsible entity - Parliament.

University statutes:  High level issues, including rights and obligations and procedural protections.  Responsible entity: High-level decision-maker in the University (may require higher level approval, ie. if required by the University Act).

University regulations:  Regulatory requirements, legal effect of decisions, legal context for policies.  Responsible entity:  Subject to the Act and statutes, lower-level decision-maker.

Policies and guidelines:  Criteria for decision-making.   Responsible entity: The University.

Procedures:  Documents which set out standard management processes, intended to produce consistency of process.  Responsible entity:  The University.

Delegations:  Delegations allocate decision-making power within the organisation.The power to delegate should be conferred by the University Act. The delegate might be a person (usually the holder of an office) or a committee, and the delegation may be subject to conditions or limitations).