Plagiarism as Research Misconduct under the Monash University Statutes - Case Study Example

Legal Research and Writing xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Legal Research and Writing xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Zaim Mohzani xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Course xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Course Instructor Part A Introduction The definition of the status academic misconduct in regard to the University of Monash falls under Statute 4.1 – Discipline1. Plagiarism is research misconduct under the Monash University statutes part IV and it occurs where an individual presents work for assessment that is not his/hers in order to obtain a benefit that he/she does not deserve2. According to Monash University, plagiarism occurs in various ways for instance, when a student presents the ideas of other people without properly acknowledging the sources or without referencing the work and also when a student copies the work of another student even if the work is partially copied among others3. Supreme Court of Victoria Legal Position in Regard to Admission to Legal Practice The demand for candor in the legal profession is probably higher than in other profession4 and it is with this regard that the Supreme Court of Victoria, requires applicants to be law practitioners to fully disclose information regarding academic misconduct for instance, plagiarism in their applications5. The board of Examiners is mandated with determining the eligibility of applicants and the decisions of the board into the suitability of applicants are solely relied upon by the Supreme Court of Victoria into admitting applicants into legal practice, under Legal Profession Act 2004 – SECT 2.3.6, 1a (ii)6. What would become of the legal profession if the courts were unable to rely on the frankness of lawyers who are mandated with litigation in the courts?7 Thus, the Supreme Court of Victoria requires an applicant to legal profession to be thoroughly vetted by the Board of Examiners in regard to all matters for instance, criminal records, academic misconduct, whether a person is of good fame and behavior among others that might affect his suitability and eligibility to legal practice8. The Supreme Court is the authority responsible for admitting applicants into the legal profession; only and only if the court has been satisfied that a person is a fit and proper person to be considered for admission9. What issues will arise for Julia when she applies for admission to practice in Victoria and what advice should she be given? Julia, having being cleared of plagiarism and seeking admission into the legal profession should make sure that she satisfies the Board of Examiners qualifications by disclosing relevant information. Of interest to note is whether Julia should disclose the incidence where Angus plagiarized her work10. In this case, Julia may feel that she has nothing to disclose since Angus is the one who had plagiarized but legal advice to Julia would be to fully disclose such information to the Board of Examiners11. Under Legal Profession Act 2004 – SECT 2.3.3, 1 (ab)12, the Board of Examiners considers whether a person has ever been involved in any disciplinary action and thus Julia should disclose such information. This is important because, if the Board of Examiners happens to find the information on their own and argue on the basis of the University of Monash plagiarism procedures under students responsibility that it is the students responsibility to safeguard his/her work for it not to be plagiarized by another student, negligence will be seen on Julia’s side since she did not take all the proper measures to ensure that her work was not plagiarized. In addition, Monash University requires that students submit an assessment which is non – examinable, regarding plagiarism, collusion, privacy declaration and signed by the student. By the mere fact that an assessment cover sheet has to be submitted and contains the student signature, Julia, therefore breached the agreement between her and Monash University13. The Council of Legal Education in collaboration with the Board of Examiners requirement 3 (suitability) in Practice Direction No. 3 of 200914, requires applicants who are seeking admission into the legal profession to get a report from educational institutions where the students undertook their studies. The report is supposed to inform the Board of Examiners of any misconduct that the applicant may have been involved in during the time he/she was studying in the institution15. In this case, misconduct takes the broader concept to include warnings from the educational institution, whether the students had ever been deducted marks, any allegations in regard to the student, if there is any circumstance when a student had ever been involved in investigations and also if the student has ever been cleared of any accusations made (exonerated)16. In the case of OG & GL, GL and OG were both aware of the seriousness of disclosure to the Board. GL disclosed the incidence which they were both accused of collusion with OG due to the similarities of their assignments. GL disclosed the facts even though the university kept no record of the incidence explaining the proper reason as to why he received a zero mark in the marketing course. OG disclosed the case but gave other reasons that he had a timetable clash and therefore unable to attend the class. On investigations, the Board in regard to GL case refused to admit him and further identified that OG was the other party who had already been admitted to legal practice. His admission was later revoked on the grounds that his disclosure to the Board was unsatisfactory and not true17. The decision of the Supreme Court of Victoria in the case of OG18, disclosing information shows that a student is committed to being honest. In this case, weight is placed on the relevance of disclosing information to the Board. With the foregoing conditions that are required to be included in the report, it would be advisable if Julia discloses the information to the Board of Examiner because in any case the Board is going to discover from the report that would be submitted directly to the Board by the educational institution. It is pointless for Julia to argue that since she was cleared of plagiarism by the institution and the institution did not take any disciplinary action against her, the institution may not have kept the records and therefore may not disclose the information to the Board. Practice Direction No. 3 of 2009 is clear about such issues where it clarifies that, educational institutions may not disclose some matters in the report, but nonetheless, it is the applicant’s duty and obligation to disclose the information19. In 5.02 (1) (b) Legal Practice Admission rules 2008, the duty of the applicants to disclose to the Board, is not specific to matters that are in the report only. In addition, the applicant is supposed to provide attested affidavit further giving evidence that he/she has complied with the requirements of disclosure20. The advice to Julia therefore is not to disregard the issue with Angus, for it qualifies for disclosure to the Board, for which failure to disclose such information will affect the applicant being recommended by the Board to the Supreme Court of Victoria. What consequences are likely to arise for Angus and what advice should he be given? To fully understand the consequences that Angus might face, it is paramount to determine whether Angus was involved in research misconduct. Angus had been given warning several times for plagiarism and therefore his intention to plagiarize by partially copying Julia’s work was intentional. His intentionality to plagiarize is based on some of the factors that the chief examiner at Monash University does a background check on to determine that a student either plagiarized with or without intentions. For instance, Angus is not a first year student who has not received warning about plagiarism in the university and Monash University has maintained the same standards and treated cases of plagiarism the same throughout the university21. In addition, Angus had only changed the conclusion part of Julia’s assignment and thus has presented a substantial amount of Julia’s assignment as his own. He had also received warning about plagiarism and as a result faced disciplinary actions against plagiarism by Monash University22. Thus Angus has been involved in a research misconduct which no doubt will affect his application to legal practice. Concurring with the amended Legal Profession Act 2004 (Vic), applicants are required to disclose all the information to the board of examiners that is relevant to be disclosed in seeking admission to legal practice. Partial disclosure is also in this case treated as cheating in itself for it eludes the credibility of the applicant to legal practice. To Angus disadvantage, the Board of Examiners ultimately discovers the facts that he omitted the case where he plagiarized Julia’s work. One of the consequences that Angus will face in regard to him not disclosing the research misconduct that he committed during his last semester in the final year is that the Board of Examiners will recommend him to the Supreme Court of Victoria as unsuitable to be admitted to legal practice23. The Supreme Court of Victoria requires applicants to fully disclose information pertaining academic misconduct. The Board of Examiners under the Legal Profession Act 2004 – SECT 2.3.3 (ab) considers whether an applicant has been involved in any disciplinary action that might have rose from the conduct of a person. Angus therefore having faced plagiarism charges by Monash University does not fit as a suitable candidate to be recommended to the Supreme Court of Victoria by the Board. The Supreme Court of Victoria admits a person to the legal profession on the basis of the Legal Profession Act - SECT 2.36 (1 & 2) and Angus dissatisfied the conditions outlined in Legal Profession Act - SECT 2.36 (1 & 2). However, the Legal Profession Act 2004 (Vic) is not distinct as to what may make an applicant not to be recommended by the Board of Directors as a suitable candidate and only gives the guidelines as to what may disqualify an applicant. Angus can thus appeal to the Supreme Court for the decision the Board of Examiners may make to disqualify him as a suitable candidate to be admitted to legal practice under the Legal Profession Act 2004 (Vic) – SECT 2.3.11, bringing us to the next consequence that he might face. The consequence that Angus may not have a case under a judge to appeal. In appealing, he ought to acknowledge his case which has been discovered by the Board. This conclusion is based on the facts relating to the case of Frugtniet vs. Board of Examiners. The requirement by the Supreme Court of Victoria to fully disclose relevant information, does not give a detailed explanation as to what relevance in this case should/should not comprise. The mandate to fully disclose information that is relevant to admission to the legal profession is left in the hands of the applicant24. However, based on the judgment of the case of Rudy Noel Frugtniet vs. Board of Examiner, a conclusion will be arrived at whether Angus should have acted as the decision maker and decided not to disclose his plagiarism case. Frugtniet v Board of Examiners [2002] VSC 140 (1 May 2002) In May, 2002, in the case of Rudy Noel Frugtniet, the appellant vs. Board of Examiner, it clearly emerged that an applicant ought to disclose any information that can affect his eligibility to the legal profession. Frugtniet made an appeal to the court on the decision of the Board that he was a not suitable candidate to be recommended to the Supreme Court of Victoria. When applying to the legal profession, Frugtniet omitted UK convictions and ANZ charges where he was an employee and charged with attempted theft. Frugtniet argued that in regard to the UK convictions that there were just convictions and not charges and that he did not deem it necessary to disclose the ANZ charges for they occurred at a time when he was an employee to the bank and therefore irrelevant to be disclosed in applying to be considered into the legal profession. Judge Pagone argued on the premise that it was not an applicant’s duty to select experiences that he felt needed to be disclosed but, to disclose any information that might affect his suitability to admission to the legal profession. Judge Pagone further questioned the affiant whether the ANZ charges and the UK convictions would have been disclosed were it not for the Board investigations and this further eluded his commitment to honesty which is a vital element in legal profession25. Thus he lost the appeal case and deemed as an unfit and improper person to be admitted to legal practice in regard to Victorian Law for admission of applicants into the legal profession. When analyzing Angus case using the case of Rudy Noel Frugtniet vs. Board of Examiners, Angus does not stand a chance even if he is to appeal. In his “Your Cheating Art Will Tell on You”, Matthew Groves, advocates that if an applicant is not sure of whether to disclose information, the applicant should commit the lesser evil of disclosing the information26. By the mere fact that Angus failed to disclose such information that was vital in determining his suitability to the legal profession and in view of Judge Pagone argument of whether he would have disclosed the information were it not for the Board of Examiners investigating the matter, Angus will find it hard to convince the court that he did not know that such information were to be disclosed. In addition and in the event that the Supreme Court of Victoria were to conduct its own investigations in regard to Angus conduct and assess the case on its own with the circumstances surrounding it, Angus will find it hard to convince the court that he did not plagiarize knowingly. The subsequent cases which Angus was involved in that made him get warnings from the university in regard to plagiarism, would diminish his chances of proving that he has improved his behaviors and therefore unsuitable for eligibility to legal practice. His case to plagiarize his final assignment in the university will make it hard to conclude that he has changed his behaviors27. His non disclosure of such a case to the extent that the Board of Examiners find the information on their own will eventually be treated as cheating in itself. It also be pointless for Angus failing to disclose his plagiarism case28 and be admitted into the legal profession, for even if he gained admission, the court or the Board of Examiners can revoke his admission anytime that the court/Board gets information regarding practitioners who may have gained admission without complying with the admission rules and guidelines29. The conclusion is that Angus should have been the source of information to the Board of Examiners in regard to his plagiarism case, because if he revealed the information, it would have shown that he was committed to honesty and thus worked in his favor30. Part B: Whether Changes should be made to the Current System It is without a doubt that changes need to be made in relation to the issue of legal entry standards and academic misconduct due to the reasons that will be outlined in this discussion. One of the principal issues that clearly stands out is the definition of the term “fit and proper person”. While determining whether applicants are suitable for eligibility to the Supreme Court of Victoria, the act that clearly defines the necessary qualifications that an applicant should have before being allowed to join the legal profession in Australia (Victoria), does not in itself clearly define the term “fit and proper person”. Legal Profession Act 2004 (VIC), Part 2.4, only accounts for what the Board considers in determining whether a person is fit and proper. What is fit and proper and when is a person thought to be “fit and proper”? Should the term “fit and proper person” be used only and only when applicants are being vetted for eligibility to legal profession? If so, then the Legal Profession Act 2004 (VIC) needs to include the definition of the term “fit and proper person” and the context and extent to which the word shall be used31. The legal Professional Act 2004 (VIC) should be amended to give a clearer definition of the term. In this case a fit and proper person will be used to define a person of morally upright characters. My second argument in support that amendments needs to be made centers on the neutrality of the Board of Examiners requirements as to the specificity of what should be disclosed. Relevance of matters to be disclosed is subjective to the applicant and this makes the applicant feel like a lone ranger and confused about what he/she should disclose. What an applicant may term irrelevant may in fact be vital to the Board of Examiners in determining the suitability of an applicant to the legal profession32. For instance, plagiarism allegations may be made on a student, but the student later on is cleared of plagiarism allegations, as in the case of Julia and Angus. The student who is cleared of plagiarism allegations may not feel that it is necessary to disclose such information33 but on the other hand, such information should be disclosed to the Board of Examiners. On the other hand, were the educational institution does not record the cases where students have been involved in academic misconduct, are such cases to be disclosed to the Board of Examiners? I suggest that the Board should be more specific to such issues. In conclusion, the measures by the Board of Examiners to scrutinize applicants seeking admission to legal practice in Australia is a plus mainly for it ensures that the public is protected from unfaithful persons in addition to relying on court’s integrity during court proceedings and also the legal profession ethics and reputation is protected34. Times have changed and students in most cases have to work and attend school, thus having no time to do their own individual assignments. Thus, the approach to stricter policies when determining if students are eligible to be recommended to the Supreme Court of Victoria by the Board of Examiners is in line with ensuring that those who practice law are honest and can be relied on by the courts and also the general public35. This will also go al long way in upholding the prestige bestowed to legal practice not only in Victoria, Australia but in the whole world. Cases Frugtniet v Board of Examiners [2002] VSC 140 (1 May 2002) (Pagone J) [2007] VSC 520 (Unreported, Warren CJ, Nettle JA and Mandie J, 14 December 2007) ('Re OG') References Freckelton, I. (2010). ‘Plagiarism in Law and Medicine: Challenges for Scholarship, Academia, Publishers and Regulators’, Journal of Law and Medicine, Vol 17, pp. 645 – 659. Groves, M. (2008). ‘Your Cheating Art Will Tell on You’, Law Institute Journal, Vol 82, No 8, pp. 43- 45. Corbin, L. & Carter, J. (2008). ‘Is Plagiarism Indicative of Prospective Legal Practice’, Legal Education Review, Vol 17(1 & 2), pp. 53-66 Billings, B. (2004). ‘Plagiarism in Academia and Beyond: What Is the Role of the Courts’, University of San Francisco Law Review, Vol 38, pp. 391-430? [2007] VSC 520 (Unreported, Warren CJ, Nettle JA and Mandie J, 14 December 2007) ('Re OG'). Lupton, R., K. Chapman and Weiss, J. (2000). A cross-national exploration of business Students’ attitudes, perceptions, and tendencies toward academic dishonesty, Journal of Education for Business, vol. 75, no. 4, pp. 231-235. Corbin, L. and Carter, J. (2007). ‘Is plagiarism indicative of prospective legal practice?’ 17 (1&2) Legal Education Review 53 Mawdsley, R. (1986) ‘Plagiarism problems in higher education’, 13 Journal of College and University Law 65 Pont, D. (2006). Lawyer’s Professional Responsibility in Australia and New Zealand. 3rd Ed. Ross, I. (2005).Ethics in Law: Lawyer’s Responsibility and Accountability in Australia. 4th Ed. Granholm, J. (2006). All Lawyers are Public Interest Lawyers. Michigan bar Journal. Lawyers Weekly. (2009). New Admission Rules in Victoria Explained. Article Posted on 25th February, 2009. Retrieved on 25th October, 2011. http://www.lawyersweekly.com.au/blogs/agony_advocate/archive/2009/02/25/new- admissions-rules-in-victoria.aspx Bartlett, F. (n.d). Student Misconduct and Admission to Legal Practice – New Judicial Approaches. Retrieved on 26th October, 2009. Retrieved from http://www.austlii.edu.au/au/journals/MonashULawRw/2008/13.pdf The Legal Profession Act 2004 (VIC) Retrieved on 22nd October, 2011. Retrieved from http://www.austlii.edu.au/au/legis/vic/consol_act/lpa2004179/ The Practice Direction. (2009). Academic Conduct Reports. Dillion, B. (2009). Law, Lawyers and Honesty (1922). Ed. USA. Kessinger Publishing. Ross, Y. (2001). Ethics in Law: Lawyers’ Responsibility and Accountability in Australia. Butterworths. Decoo, W. (2002). Crisis on Campus: Confronting Academic Misconduct. Cambridge. The Mit Press. Jacobson & Caroline, P. (n.d). Academic Misconduct and Bar Admissions. A Proposal for a Revised Standard. AllBusiness.com. Retrieved on 26th October, 2011. Retrieved from http://www.allbusiness.com/government/government-procedure-lawmaking-licenses-permits/8908399-1.html Godfrey, J. and R. Waugh (1997) Students’ perceptions of cheating in Australian independent schools, Education Australia, vol. 37, pp. 14-16. Monash Plagiarism Policy – Retrieved on 23rd October, 2011. Retrieved from, http://www.policy.monash.edu/policy-bank/academic/education/conduct/plagiarism-policy.html Plagiarism Procedures – Retrieved on 23rd October, 2011. Retrieved from, http://www.policy.monash.edu/policy-bank/academic/education/conduct/plagiarism-procedures.html Chapter 4 – Discipline under Statutes in Monash University Calendar – Retrieved on 23rd October, 2011. Retrieved from, http://www.monash.edu.au/pubs/calendar/statutes/statute04.html#Heading102 Student Discipline – Guidelines – Retrieved on 23rd October, 2011. Retrieved from, http://www.policy.monash.edu/policy-bank/academic/education/conduct/discipline-guidelines/discipline-guidelines.html Monash Plagiarism Policy – Retrieved on 23rd October, 2011. Retrieved from, http://www.policy.monash.edu/policy-bank/academic/education/conduct/plagiarism-policy.html Board of Examiners – Powers and Policies – Retrieved on 23rd October, 2011. Retrieved from, http://www.lawadmissions.vic.gov.au/docs/Powers_and_Policies.pdf Board of Examiners – Acts & Rules – Retrieved on 23rd October, 2011. Retrieved from, http://www.lawadmissions.vic.gov.au/docs/Act__Rules.pdf. Read More