“Clayton’s… The drink you have when you’re not having a drink” — John McKellar, 1980s.
In the 2020s, Australian universities are obsessed with selling their ‘student experience’. They have large, heavily funded units devoted to producing all manner of glossy documents and marketing materials to tout their rankings, graduate employability, bespoke facilities, etc., all of which feature an adequately diverse yet deliberately chosen array of very happy looking students enjoying their studies.
Many prospective students are interested in and easily swayed by all these selling points. But for a small but growing handful, the thing they wished they most knew about before enrolling was all the places in which these wonderful looking institutions are broken, because those things can ultimately come to completely dominate and destroy their student experience, and leave them wishing they’d never come to the university at all.
One of these is the student misconduct apparatus of the university sector. Until very recently, the vast majority of students had no interaction with misconduct units beyond their introductory course about plagiarism and cheating at the start of their studies.
Three things have combined recently to change this.
The first is the growing availability and use of online tools by both universities and students. For universities, it’s using online exam/assessment platforms to reduce their costs in time and money for operating the business. For students, it’s the wealth of online resources available today, be it Wikipedia, ChatGPT, hosting sites like CourseHero & Chegg or Discord study groups. Some are genuinely nefarious, others are the ‘tools of the future’ that universities just haven’t adapted to yet.
The second is the growing pressure on students to achieve more with less. The fees are ever higher, pushing most students into significant levels of debt before they even have their first job. At the same time, their time availability is ever lower due to other commitments, often work to finance their education, or internships (i.e., free labour for experience). Additionally, several drivers have lead to a growing number of smaller weight but nonetheless meaty assessments being favoured over the more traditional focus that higher education had on high-stakes single-shot final examinations for assessment.
Those two are obvious to most in the sector but the third might not be — it’s the growing use by universities of computerised tools for the surveillance of students and detection of potential cheating, ranging from simple plagiarism detection systems such as Turnitin and multiple-choice pattern spotters through to new and relatively untried systems for detection of AI usage. As anyone who has used these tools well knows, it is easy for them to ‘false flag’, and it requires a skilled investigator and very good processes to determine what crosses from circumstantial evidence alone to an evidence base sufficient for ‘guilt beyond reasonable doubt’. For example, if I take my own work and put it into Turnitin, it flags minor overlaps with all manner of documents I never knew even existed, often because there are limited ways to put words into sentences with the same topic and meaning. How does one tell obvious plagiarism from coincidental similar wording? One needs to look deeper — the evidence needs to be more than circumstantial to be sure there was true misconduct.
A serious challenge arises when the three effects described above combine: the case load of those handling misconduct cases skyrockets and it soon becomes more than they can possibly deal with. At this point, difficult choices need to be made. The most obvious one is to let many cases go. This was my approach (by necessity) in the 2-3 years I served as my school’s student integrity advisor: anything where there was no strong evidence beyond the circumstantial had to be dropped (often with just a warning), only the ‘slam dunk’ cases were pursued — those where the evidence was so strong that the risk of overturn if it were appealed (under a proper appeal process) was effectively zero. This was mainly because a key ground for appeal is procedural fairness, i.e., the process is implemented in full and fairly, and so if my case load forced me into short-cuts, then I had nothing. To not pick the top cases just meant that my caseload would swamp me. My bar basically became one of ‘Would I be able to convince one of my friend’s brothers, who is a criminal defense lawyer, that my case actually holds water’, if not, no case.
An alternate approach, and one that I’d argue is starting to emerge, is to reduce the standards of evidence required for a finding of guilt and thereby streamline processes to reduce the resource-burden per case. This could be, for example, by accusing students simply on the basis of the output of detection software, and then placing the burden of proof onto them regarding their innocence — much as we saw recently with the Australian Government’s ‘Robodebt’ scheme, which had a similar approach of using computer-data to accuse of guilt and then requiring the citizen to prove their own innocence to escape it. This could also be by slimming down the misconduct process to ensure the process can be carried out to the letter more efficiently, for example, by having friendly sounding ‘conversation’ processes aimed at cajoling out an admission of guilt or stripping back time consuming and personnel-intensive aspects such as proper appeal processes. Conversation processes aren’t necessarily intrinsically bad on their own, but, when combined with a weak appeals process and the strong power-dynamic asymmetry between staff and undergraduate students, there is strong potential for an unjust system to evolve.
“It takes a long time to learn that a courtroom is the last place in the world for learning the truth.” — Alice Koller
A vital part of modern legal systems is the right to a fair appeal. Courts make mistakes; judges and juries can suffer everything from mild bias through to complete incompetence; and information of vital importance to the case can be ignored, misunderstood or not have been brought to light. A key tenet of modern legal appeals systems is that the case is reheard in a separate process by a separate party of decision-makers from those who were involved in the original process/decision.
An effective ‘firewall’ between the appellate jurisdiction and the original jurisdiction, as enacted by the hierarchy of courts in a legal system, is essential to sensibly enacting separated review of both the decision-making process and the decision itself. It enables review without the hinderance of the same human biases that may have influenced the initial decision or the potential self-loss of face at the original jurisdiction that might result from needing to reverse their own decision.
The separation of the appellate jurisdiction also provides effective oversight of the original jurisdiction. Without that oversight, or with just ‘self-review’ or ‘self-regulation’, for example, the original jurisdiction can easily stray significantly from fairness — procedural and otherwise — without any means for bringing it back to equilibrium. A separate appellate process achieves fairness by overturning rulings that stray from fairness. This might not prevent ‘mad rulings’ from the original jurisdiction per se, but it certainly protects the innocent from those decisions and removes any incentive for the original jurisdiction to become a law unto its own self.
“No oppression is so heavy or lasting as that which is inflicted by the perversion and exorbitance of legal authority.” — Joseph Addison
The opening lines of UNSW’s 2025 Strategy boast that “[s]ince our foundation in 1949, UNSW has aimed to improve and transform lives through excellence in research, outstanding education and a commitment to advancing a just society“[emphasis mine]. Given that, and that UNSW has one of the strongest law schools in Australia, one could expect that the UNSW student misconduct process — as one of the few true quasi-legal processes inside the university — would enact and exemplify the highest standards possible for fairness and the review of evidence towards just decision making on misconduct cases. Let’s put this to the test…
Suppose I’m a student. I’ve just been found guilty of student misconduct at UNSW, the penalty might be to the fail the exam and therefore fail the course, for sake of example. Suppose I’m also convinced of my innocence; perhaps the evidence is circumstantial and has been pushed too far, perhaps there’s an aspect of the evidence that I supplied in my defense that they conveniently chose to ignore, etc. What’s my recourse at this point? Well, if I search my options, I inevitably end up at the UNSW Student Misconduct Procedure v3.4. The appeals (a.k.a. ‘review’) process is down at Section 4.7, and I include it below for reference.
The appeal goes to the Executive Review Officer (ERO), who can delegate the task to a nominee, and that nominee can include the exact same office that investigated the case in the first place. The appeal is simply to ‘affirm’ (how presumptuous) that the procedure was followed properly, and assuming it was, the appeal can be dismissed — appealing the decision itself independent of the process is ruled out in Section 4.7.2. Furthermore, there’s no process specified for the review, no independent body provided for the review, no hearings or ability for the student to put their case beyond their appeal submission, and no timeframe specified for required or even indicative completion of the review — it could take weeks or even months (and I know of cases where this has taken months, and more than one hand’s worth too).
It’s an ‘appeal’ avenue that is far from espousing the highest standards of fairness and just decision making in my view. It’s basically the Clayton’s appeal — the appeal process you have when you’d rather not have any appeal process. So much for advancing a just society…
A cynic might say ‘well, it’s a university, not a court, so it’s a bit rich to expect proper process here.‘ Is it? Incorrect determinations of student misconduct can have an adverse impact on a student’s future as much as a minor criminal offense would. And given it’s possible for a student to finish before a case has been completed — it often happens when the process has no deadlines and becomes glacial in pace — having to shop a transcript with a dreaded WJ grade in it (grade withheld for student conduct investigation) is tantamount to rendering a graduate nearly unemployable until the case is finally resolved, whenever that is.
So, how does UNSW’s competition do on this? Let’s suppose I’m a student at the University of Sydney. My search will ultimately end up at the University of Sydney (Student Discipline) Rule 2016 (25/10/23 amendment), where the Appeals process is outlined under Part 5. It is a much longer (and much better) policy and I’ll highlight a few key features here:
Firstly, it is possible to appeal any and all aspects of the decision, not just procedural fairness at the exclusion of the merits of the decision itself. Secondly, not only is there a proper process for conducting the appeal, but it’s done by an independent body with its own proper hearing process that the student can attend and present their own case at.
Lastly, the process has a defined length that ensures that it cannot be dragged out forever (a quick assessment of the policy suggests the typical appeal is ~2-3 months maximum from start to finish if the process is administered effectively).
The contrast here is stark — The University of Sydney process looks like one that has the highest ideals of justice in mind, with an appellant structure that operates independently of the original jurisdiction for the decision and shows due respect for the student’s right to feel that their appeal has been adequately and fairly heard and considered. The UNSW process looks like one custom designed to prevent and obstruct any sense of appellant justice.
A reader might now say ‘But that’s Sydney University. It’s a sandstone university. It’s a proper university with proper resources, so it can have processes like this.‘ Is the University of Sydney unique?
Let’s look slightly down the road then, at the University of Technology Sydney (UTS). Suppose I’m a student at UTS looking at my misconduct appeal options. Now I end up at Section 16 of the UTS Student Rules, and here also is a strong process. First, there’s an appeals committee, and wisely, Section 16.14.1(3) stipulates that members of the original inquiry body cannot be involved in the appeal, again in stark contrast to UNSW, where the case can be nominated back to the same unit that investigated it in the first place.
Yet again there is proper procedure, the ability to investigate the decision and hear from the student involved, and a timeline to completion.
Returning to UNSW, clearly there’s a very serious deficiency in the fairness of its appeals process regarding student misconduct. And it has been a long-standing one too. The current appeals process has been largely in its current form since v2.0 of the procedure from November 2012, although at least back then, there were timelines for the appeals process to avoid it taking forever. Since then, there have been 10 revisions of v2.0 and 4 revisions of v3.0 to the current version, none of which have strengthened the fairness of the student misconduct appeals process in any meaningful way.
Students reading this might think ‘This is lovely and all Adam, but I’m not a cheat, so this isn’t going to stop me choosing UNSW.‘ That’s all well and good, but many of the students that I have seen tangled up in this system, particularly the ones that have needed that appeals process, would have thought the same. And bearing in mind the growing use of online surveillance and detection techniques, the probability of potentially being flagged and investigated is higher than in the past. Lest anyone accuse me of being against preventing cheating and student misconduct — I know a bunch of university staff will soon have the hounds on me for what I’m saying here — that cannot come at the expense of fair and just processes that separate the malicious and intentional from the accidental and coincidental. Without strong processes for reviewing evidence and decisions, we seriously risk ending up somewhere between Robodebt and the Minority report.
“Corporate culture matters. How management chooses to treat its people impacts everything — for better or for worse.” — Simon Sinek
It is also good to note that these things are often indicative of the overall culture of a place. If an organisation is willing to tolerate weaknesses like this in its student misconduct appeals process, then where else is it willing to compromise its stated commitment to fairness and justice? It the stated commitment a real commitment at all? Or is it just the words that look good from a marketing perspective?
And where else is the culture weak? An organisation that has a proper appeals process acknowledges that despite doing its best, sometimes these things go wrong, and if you genuinely care about your people, providing effective, timely and obviously transparent processes for redress is a way to demonstrate that. On the other hand, an organisation that weakens these processes for expediency, or obscures the process out of plain sight… what message does it send? Does it signal the belief that its processes are perfect and it never makes mistakes? Or that an accusation is guilt, i.e., all students are intrinsically malfeasant and just waiting to be caught? Or that justice and fairness are not worth the resources, which can be better spent elsewhere, such as on signage or executive remuneration packages?
I’ll leave it for you to decide on what the messaging tells you, and hope that some due attention to this process is finally enacted in the very near future.
Fear and Loathing in Academia 
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