Exclusion Appeals Committee of Academic Board Procedures
Please note that these procedures have not yet been revised or converted to the new format.
These procedures were approved at Education Committee meeting 2/11/11.
These procedures should be read in conjunction with the Faculty Academic Progress Committees Procedures.
APC - means the Academic Progress Committee constituted by a faculty board under section 3 of Statute 6.2. Each faculty may have one or more Academic Progress Committee.
APC Hearing - means a hearing conducted by an APC whether or not a student concerned is in attendance.
Bias - refers to a reasonable perception of bias on the part of an APC member. Such a reasonable perception can exist where the person has a closed mind to the student's circumstances or has pre-judged the case or is influenced by personal factors in deciding the student's case.
By post- where the statute requires notices to be served by post, Express Post or Registered Mail or courier (for Australian addresses) or by International Courier (for international addresses) should be used. The use of electronic mail is a supplementary method of delivery.
EAC - means the Exclusion Appeals Committee as described in section 4 of Statute 6.2
Deemed delivery date - means the date a notice is treated as having been delivered to the student by post after applying normal delivery times advised by the organization delivering the notice. This anticipates a student regularly checks their mail. Any failure by the student to check their mail does not alter the deemed delivery date.
New evidence - means evidence that was not reasonably available to the student at the time of the APC Hearing with the potential to alter the outcome of the student's case.
Notice - means any notice referred to in these Procedures.
Notice of Decision - means the Notice of Decision letter that formally advises the student of the outcome of the APC hearing, the reasons for the decision and any right to appeal.
Notice of Referral and Hearing - means the Notice of Referral and Hearing letter which has the purposes of advising the student that they have been referred to the APC for consideration for exclusion, and advising the dates of the APC Hearings for the faculty, and inviting the student to respond in writing, giving reasons why they should not be excluded and describing what has impacted their studies in the academic year being considered and what is their plan to achieve academic success in future.
Procedural irregularity - refers to a breach of the rules of procedural fairness (natural justice) or deviation from the requirements of Statute 6.2, its regulations or procedures with the potential to alter the outcome of the student's case.
2. Constitution and Functions of the Committee
2.1. The EAC is a committee of the Academic Board constituted from a panel established by the Academic Board. Each committee comprises four members including a chair (a member of the teaching staff of the Faculty of Law), two other members (from those nominated by deans of each faculty), and one student unless, the student appellant elects to not have a student member on the EAC. The student member is to be an undergraduate student if the appeal is from an undergraduate student, or a postgraduate student where the applicant is a postgraduate student. Ordinarily the student member is a suitable person nominated by a student organisation representing such students. At least one member of each EAC should have completed training on the University's obligations to students with a disability.
2.2. A quorum for an EAC hearing is three members including the chair.
2.3. The powers and procedures of the Exclusion Appeals Committee are set out in Statute 6.2 - Exclusion for unsatisfactory progress or inability to progress and the regulations made pursuant to that Statute.
2.4. The function of the Law chair of the EAC is to determine if there is a prima facie case (i.e. reasonably arguable case) in support of the appeal ground relied on by the student. The function's of the EAC are to decide if the appeal ground/s is made out, where one of the grounds relied on by the student is procedural irregularity, and if upheld directs the further disposition of the student's case.
3. When can a student appeal to the EAC?
3.1. If a student is excluded by the APC of any faculty, the student may appeal to the EAC on one or both of the following grounds:
a) new evidence not reasonably available to the student concerned at the time of the faculty hearing which has the potential to alter the outcome of the student's case; or
b) procedural irregularity in the hearing or processing of the case, which consists of a breach of the rules for procedural fairness (natural justice) or a deviation from the requirements of the following with the potential to alter the outcome of the student's case:
3.2. A student who fails to respond to the Notice of Hearing and Referral has no right of appeal to the EAC. Instead the right of appeal is to the dean of the faculty, who may exercise a discretion to refer the matter back to the academic progress committee for a re-hearing where he/she finds there are exceptional circumstances in the particular case.
4. Advice on preparation of appeals and assistance to students appealing an exclusion outcome
4.1. Students are encouraged to seek advice about the preparation and presentation of an appeal from the student rights officers of the relevant student association at the University. The student rights officers may also assist a student appearing at a EAC hearing.
4.2. Additionally, student support is available from a range of University services including the University Counselling Service. A current list of Student Support Services and contact details will be made available to students and faculties.
4.3. A student may also seek advice about the preparation and presentation of an appeal by contacting the Monash-Oakleigh Legal Service on 60 Beddoe Avenue, Clayton 3168. Appointments may be made by telephoning extension 9905 4336. The service does not itself provide representation at hearings before the EAC, but may assist a student to obtain suitable assistance should this be desired.
5. Procedure for lodging an appeal
5.1. The student has a period of 20 working days following the deemed delivery of the APC Notice of Decision to lodge the appeal with the secretary of the EAC. The appeal must be in writing, accompanied by the Notice of Appeal Against Decision to Exclude proforma (as set out in the regulations) and indicate the ground/s of appeal relied upon, being procedural irregularity and/or new evidence.
5.2. Students must submit a written statement of the ground/s of their appeal when lodging the appeal. Documentation in support of the appeal grounds/s must be either submitted at the time the appeal to the EAC is lodged, or advice provided as to when the documentation will be available where such documentation is necessary to determine if there is a prima facie (arguable) case for the appeal.
5.3. Students may provide independent supporting documentation from a registered provider or member of a profession (such as a specialist doctor, psychologist, social worker, minister of religion) at the time of lodging their appeal.
5.4. Original documentation supporting the student's appeal is not required. However unless originals are available when requested by the Law chair for verification purposes, the document may be disregarded.
5.5. Any documentary material furnished by or on behalf of a student, including the written appeal against the faculty APC decision to exclude, will be provided to the dean of the faculty in which the student is enrolled or his/her representative prior to the hearing.
5.6. It is the student's responsibility to retain copies or record of his or her correspondence, including proof of postage or despatch of any material sent.
5.7. No student encumbrance relating to the exclusion is to be placed on Callista pending the outcome of the appeal. If a rehearing or de novo hearing is granted, this includes until this hearing is finalised.
6. Determining if there is a prima facie case
6.1. Once an appeal is lodged which sets out in writing the ground/s of the appeal, within 10 working days the appeal is to be referred to a Law chair of the EAC. The Law chair must determine whether or not there are prima facie grounds for the appeal (i.e. sufficient evidence that could establish the appeal ground, making it an arguable case) being (a) new evidence, or (b) procedural irregularity, or both.
6.2. The failure by the student to make available to the APC all relevant material reasonably available to the student at the time of the hearing is not a ground to appeal.
6.3. It is the student's responsibility to update their address details in the records of the University (also refer 3.1). The following reasons / grounds are not grounds for an appeal:
6.4. Prior to making a decision the Law chair should have benefit of any comment the student chooses to make on the content of the Hearing Record Sheet for the APC.
6.5. Before deciding whether there is a prima facie case the Law chair should seek a response to the appeal ground from the Faculty APC chair through the secretary to the EAC. If the response raises a substantial new matter and the Law chair is considering dismissing the appeal, the student should be given an opportunity to comment on the substance of the faculty response.
6.6. The Law chair may either find no prima facie grounds and dismiss the appeal, or find prima facie grounds (an arguable case) and refer it to the faculty for rehearing (in the case of an appeal found on new evidence only) or refer it to the EAC to decide if the appeal is upheld or dismissed (in all other cases).
6.6.1. Where the Law chair determines that there are no prima facie grounds for the appeal, the appeal is dismissed.
6.6.2. Where the Law chair determines there are prima facie grounds for appeal on the basis of new evidence only, the Law chair must refer the matter back to a reconvened faculty APC for rehearing. The APC must have the same membership that made the original determination as far as is practicable (refer the Faculty Academic Progress Committee Procedures). In addition to the original membership, the faculty APC will be augmented by the addition of the Law chair as an ordinary member of the APC. Any appeal against a decision of an APC on a re-hearing is limited to the ground of procedural irregularity.
6.6.3. Where the Law chair determines there are prima facie grounds for appeal on the basis of procedural irregularity, whether or not together with new evidence, the appeal must be heard and determined by the EAC.
6.7. The student and the dean of the faculty must be sent Notice of Decision including the reasons for the Law chair's decision. The reasons for decision should be a clear statement explaining why the decision was made. Where the effect of the decision is the student remains excluded, the Notice of Decision must include a statement of the implications on visas for international students who are excluded by their faculty and advice of the right to apply to the Victorian Ombudsman to review the decision.
6.8. The EAC has no power to require a faculty in which the student had not been enrolled previously to admit the student.
7. Convening EAC hearing
7.1. The only circumstances under which a hearing by the EAC will be conducted is following the decision of a Law chair of the EAC that there are prima facie grounds of procedural irregularity.
7.2. Notice of the EAC hearing must be sent by post to the student advising of the date, time and place at which the EAC hearing of the student's appeal is to be heard. The notice of hearing must be sent so its deemed delivery date is at least 10 calendar days prior to the hearing, unless the student agrees to a shorter period.
7.3. The substance of any material that the EAC might use in its deliberations will be made available to the student, either through inclusion with the notice of hearing, or by a statement that it can be collected from the secretary to the EAC two days prior to the hearing.
8. The EAC Hearing
8.1. The EAC hearing will be conducted in the English language. The Law chair of the EAC is responsible to ensure the fair and efficient conduct of the hearing and determination of the appeal. The procedure adopted for the hearing needs to be sufficiently flexible to respond to the circumstances of the particular case. The hearing should provide the student with a reasonable (but not unlimited) opportunity to present his or her evidence and arguments in support of the appeal ground.
8.2. A student may appear in person at the EAC hearing and submit written evidence and make oral submissions. The student may be accompanied and/or assisted by a staff member or student or other person approved by the EAC, who may also speak at the hearing.
8.3. A student who wishes to be accompanied by a person with legal qualifications should give five working days notice to the secretary. A student is not entitled to be assisted by an external lawyer without prior approval from the Law chair of the EAC.
8.4. A student who does not intend to appear before the EAC should inform the secretary prior to the hearing. The student can submit further written material in support of the appeal to be considered by the EAC in the student's absence. Where a student does not attend the hearing, the appeal will be heard based solely on the written submissions of the student and any faculty response. A student who is prevented by circumstances beyond his/her control from appearing before the EAC should notify the secretary immediately of any such event. Where a student is unable to appear in person, alternative arrangements may be made to hold the hearing via telephone conference by prior arrangement made through the secretary to the EAC.
8.5. Where an appeal is referred to the EAC, the dean or dean's representative of the faculty from which the student has been excluded will be present at the hearing of the appeal. He/she and the student may make present evidence and make submissions to the EAC. The faculty representative's role is to assist the EAC in its enquiries by informing the EAC of the procedures followed by the faculty in reaching its decision to exclude the student. The faculty representative appearing before the EAC should, except in exceptional circumstances, also have been a member of the Faculty APC.
9. Conduct of Hearing
9.1. EAC members are appointed to act fairly and impartially and to cooperate with the chair. The Law chair is responsible to ensure the conduct of those present and the process is fair. EAC members must respect the sensitivity of the information which they acquire through the process and not use or disclose it for any purpose not relevant to the university's management of student progress. Importantly the confidentiality of the EAC's private deliberations must be maintained. EAC members must bring an open mind to the matter to be determined and not prejudge the issue. Any EAC member not able to fulfil these obligations should excuse themselves as a EAC member or, in the event that they do not or cannot fulfil these obligations, may have their appointment revoked.
9.2. The EAC hearing is conducted in private. The persons who attend are the EAC members, the student and any person providing assistance or support to the student, the dean or dean's representative and, the secretary to the EAC and such other staff whose services may be required to assist the EAC. Where the student is permitted to be legally represented, the dean shall also be permitted to be legally represented. In the case of double degree students, where they are being considered for exclusion by the faculty board of one or both faculties of enrolment, the dean or dean's representative from the other faculty may also be present. Any person who attends witness to give evidence will be in the hearing room only for the time during which their evidence is given.
9.3. The EAC does not have the power to require the attendance of witnesses. It is therefore the student's responsibility to make arrangements for the attendance of any person whom he/she wishes to give evidence on matters relevant to the appeal. A student who wished to have a witness attend should inform the secretary at the time the appeal is lodged, or as soon as possible thereafter.
9.4. Upon commencement of the hearing, the Law chair should introduce the members of the EAC and explain the process of the hearing to all in attendance. The Law chair should then ask the student and the dean (in turn) if there is any objection to the hearing proceeding at this time or to any of the EAC members hearing the case, for example on the ground of a reasonable preception of bias. If an objection is raised the Law chair must ask the reasons for the objection and the EAC must determine the objection. The EAC may take a short adjournment to determine the objection. An objection should only be granted if justifiable grounds are raised in support of it. An objection that an EAC member is affected by a reasonable perception bias must be raised at the first reasonable opportunity and must not be withheld until an adverse decision is known.
9.5. When an objection is allowed, the EAC hearing must be conducted according to that decision. This may necessitate the hearing being adjourned to a time set by the Law chair, or for the membership of the EAC to be altered and then the EAC hearing to proceed. If the objection is denied, the EAC should proceed.
9.6. The objective of the hearing is to determine the occurrence or otherwise of procedural irregularity in the processing or hearing of the student's case at the faculty APC, if raised, also the question of new evidence becoming available since that hearing. The hearing must confine its considerations of the appeal ground (procedural irregularity, possibly coupled with new evidence). The appeal is not concerned with whether the EAC agrees with the final decision of the APC.
9.7. The dean or dean's representative should be invited by the Law chair of the EAC to outline the procedures followed by the Faculty APC in determining to exclude the student, with particular reference to the issue of procedural irregularity claimed by the student. The dean may also offer evidence and other matters that he/she considers the EAC should take into consideration in deciding the appeal.
9.8. The Law chair should then invite the student to comment on the statements made by or on behalf of the faculty. The student will be given a chance later to present their case to the EAC, and so the student should at this stage be asked to only comment on the dean's statements.
9.9. Members of the EAC may ask questions of either party but should avoid interrupting another person speaking unless the matters canvassed are known or unhelpful to the EAC. Any questions that the student or faculty wished to raise during the hearing should be directed to the Law chair, without any direct cross-examination between the two parties. The student should normally address the Law chair of the EAC. Other members of the EAC, or the dean or dean's representative, may be addressed with the Law chair's permission.
9.10. The student should then be invited by the Law chair to outline the case they wish to present to substantiate the allegation of procedural irregularity (and if also put, new evidence). Any person supporting the student should be invited to add any comment he/she wishes to make.
9.11. The dean's representative will be invited to comment on the statements made by or on behalf of the student.
9.12. Upon hearing the appeal, the EAC may either dismiss or uphold the appeal.
9.13. Where the EAC dismisses the appeal, there is no further right of appeal and the APC exclusion decision stands.
9.14. Where the EAC upholds the appeal, the student is entitled to a de novo hearing before a newly convened faculty APC. The Faculty APC must have different membership from the original hearing. It must contain no member of the APC that made the original decision to exclude the student. Where directed by the EAC, the newly convened faculty APC is to be augmented by the chair so directed of the EAC that heard the appeal, acting as chair of the Faculty APC for the purpose of that hearing. Where the appeal is from the Law faculty, then the chair shall be a chair of another faculty's APC. The decision of an APC on a de novo hearing may be appealed by a student only on the ground of procedural irregularity.
9.15. The decision of the EAC is by majority. In the event that the EAC cannot reach a majority decision, the chair has a casting vote to determine the outcome of the appeal.
10. Notice of the EAC's decision
10.1. Wherever possible, students will be informed of the outcome of their appeal at the conclusion of the hearing. In all cases, the student will be sent in writing Notice of Decision of the EAC's decision and the reasons for the decision within seven days of it being made. The reasons for the decision should be a clear statement explaining why the decision was made.
10.2. Where the effect of the decision is the student remains excluded the Notice of Decision must include a statement of the implications on visas for international students and the right to apply to the Victorian Ombudsman for review of the decision.
10.3. The student may request the secretary provide more detailed reasons for a decision. Any such request must be made to the secretary within thirty days from the deemed delivery date of the Notice of Decision.
11. General enquiries
11.1. Enquiries regarding the hearing of appeals should be directed to the secretary to the Exclusion Appeals Committee of Academic Board on telephone (03) 9905 5137.