PLAGIARISM AND ACADEMIC MISCONDUCT BY LAW STUDENTS: THE IMPORTANCE O f PREVENTION OVER DETECTION M i c h e l l e Ev a n s 1 M u r d o c h U n i v e r s i t y , We s t e r n A u s t r a l i a

Plagiarism and other types o f academic misconduct at Law School can have very serious consequences fo r students after graduation. As case law illustrates, these include denial o f admission as a legal practitioner or being ‘struck o ff’the roll o f legal practitioners ifplagiarism is discovered after admission, as prescribed by the Legal Practice Acts o f the various States throughout Australia. The traditional approach adopted by Law Schools is to ‘catch and punish ’students who commit academic dishonesty. However, a review o f education literature, when read in light o f the very serious consequences fo r students who are found to have ‘committed’academic dishonesty (or even have an allegation o f academic misconduct made against them), suggests that this approach, whilst necessary in some cases o f actual dishonesty, is flawed because it does little to prevent academic misconduct from occurring in the first place. This paper argues that an alternate approach, o f prevention o f plagiarism before it happens, is preferable. This paper provides some suggestions as to how Law Schools can educate students about academic dishonesty in order to reduce plagiarism and other form s o f academic misconduct.

I In t r o d u c t io n The traditional approach to plagiarism, and other types of academic misconduct such as collusion, in Law Schools is to ‘catch and punish’. However, the writer will argue that instead of focusing on a ‘catching offenders’ approach, Law Schools should focus on prevention1through educating students about academic misconduct. In other words, the writer’s argument is that Law Schools should incorporate plagiarism prevention into their teaching practices.2 The writer will argue that there are four reasons for adopting a preventative approach. Firstly, there are potentially very serious ramifications for law students who have been found guilty of academic dishonesty. They may be denied admission as a legal practitioner in the first place, or ‘struck off’ if they have been admitted but failed to disclose adverse findings of academic dishonesty against them before seeking admission. Secondly, legal practitioners must take an oath to uphold the law and are bound by a code of ethics. Students should therefore be educated about their ethical and moral obligations as lawyers as part of a well-rounded legal education throughout their law studies, and not just in the Legal Ethics unit, which most often occurs in the final year of the law degree. Thirdly, there are numerous problems with the accuracy of detection including defects in plagiarism detection software and papers being split amongst multiple markers for larger units in the law degree. Fourthly, a review of education literature reveals that many students, both international and domestic, do not understand what plagiarism and collusion,

1Address fo r correspondence: Dr Michelle Evans, Senior Lecturer, School of Law, Murdoch University, South

Street, Murdoch, WA 6150, Australia. Email: [email protected] 1836-9030 Vo l 17, N o 2, 2012, p p . 99-121 International J ournal of La w & E ducation

99

for example, are, which can lead to inadvertent contraventions. Therefore, educating students about what constitutes academic misconduct can stop it from happening in many cases. This paper will commence by defining what is meant by ‘academic misconduct’ with specific reference to plagiarism, collusion and purloining. Secondly, relevant provisions of the Legal Practice Acts of the various Australian States will be outlined, with a particular focus on Western Australia. It will be shown that a contravention of this legislation, by way of academic dishonesty committed at University, could result in the denial of admission. Provisions regarding the ‘striking off’ of legal practitioners if prior academic dishonesty is discovered after admission will also be examined. Thirdly, relevant Australian case law will be reviewed to illustrate the very serious consequences and detrimental impact on the legal careers of individuals who have been found to have committed academic misconduct in their undergraduate studies. Academic literature on academic misconduct will then be reviewed to highlight the importance of prevention over detection. The paper concludes with recommendations as to how Law Schools and law teachers could develop strategies to prevent academic misconduct by students in the first place.

II D efining A cademic M isconduct The various forms of academic misconduct are premised upon protecting and respecting the moral rights of the original author or creator of the work or idea. That is, the author or creator must receive recognition for their work and their ideas which must not be misappropriated. This is something that Universities have taken seriously with University Regulations and Assessment Policies including detailed provisions about academic misconduct.3 The main types of academic misconduct are plagiarism and collusion. However, ‘purloining’ and other acts of fabrication that the writer has encountered as a teacher of Law will be noted in this section.4 ‘Plagiarism’ involves using someone else’s words or ideas without acknowledging the source. Essentially, it is a representation that words are the student’s own, or an idea is their original one, when the authorship can be attributed to someone else. Plagiarism can involve the direct copying of an author’s exact words without quotation marks. Frequently it also involves the omission of attributing the authorship and source of those words (that is, without the correct citation being given). A common example of plagiarism involves the student ‘cutting and pasting’ from an internet or other electronic source into their assignment without quotation marks and/or acknowledging the source. It can also involve the use of substantially similar words (for example, copying the words out of a text book and changing a few words) instead of the same words in quotation marks or paraphrased words with an appropriate reference acknowledging their source. Plagiarism can also be the presentation of a theory or idea as a student’s own, which in reality they have ‘borrowed’ from another source, for example, one that they have read about in a text book or journal article. ‘Collusion’ occurs when two or more students work collaboratively to produce the same or a substantially similar assignment, in whole or in part, whilst representing it as their own individual effort. This can occur when two or more students write the one assignment and submit it separately. Interestingly, it is common practice in Law Schools, and indeed Universities generally, to make students sign a declaration when submitting an assignment that it is all their own work. Collusion can also occur when one student gives another student a copy of their assignment, and knowingly or unknowingly the second student copies it, or parts of it. This could also be defined as ‘purloining’, which is discussed in the next paragraph. There are also web sites from which students can have their work checked and corrected for a fee, meaning

100

M ic h e l l e E v a n s

that the student is submitting work that is not entirely their own.5 Other examples of the student submitting work that is not their own include having a friend or relative write their assignment (or substantially re-writing it for them), or submitting an assignment previously submitted by another student in a previous year or at another University. The writer has also seen cases where a student has ‘stolen’ another student’s assignment from a printer, unattended computer or UBS drive. This is more specifically known as ‘Purloining.’ Other instances of academic dishonesty can include the fabrication of sources, such as fictional case names. The writer has also encountered the situation where the student footnoted a personal conversation he had with a public official that had never occurred. In addition, as noted above, University Regulations usually state that it is academic dishonesty to submit the same piece of assessment twice, such as a student submitting a piece of assessment that they have previously submitted in another unit with no amendments or minor amendments. Although the writer has sought to define the various types of academic misconduct in this section of the paper, as discussed later in the paper, academic misconduct is difficult to define.6 Students often misunderstand what it is,7 and there is also disagreement between academic staff as to its exact definition.8 In addition, relevant Regulations, Assessment Policies and misconduct procedures will differ between tertiary institutions.9 Some treat plagiarism as ‘black and white’ with any contravention being regarded as an offence.10Hence, a finding of inadvertent plagiarism against a student (for example, due to carelessness or a mistaken understanding about precise referencing) would essentially amount to a finding of dishonesty against the student, something that may have dire consequences for law students when they seek admission as a legal practitioner. However, other Universities make a distinction between whether the conduct is dishonest or inadvertent to determine the degree of culpability and the penalty.11 This ambiguity indicates the need for the education of staff and students about what precisely constitutes academic misconduct at their tertiary institution. Better still, uniformity between tertiary institutions, and more specifically Law Schools, would promote an understanding of academic misconduct amongst both staff and students, and hopefully have the added advantage of assisting to prevent it from occurring. It is argued that many incidences of academic misconduct such as plagiarism are inadvertent. This is supported by the evidence of a lack of understanding by both academic staff and students as to what academic misconduct is. That is, it appears that much academic misconduct is due to student ignorance or carelessness rather than intentional dishonesty, and accordingly could be prevented through education. This will be evident from an examination of academic literature later in this paper. In addition, two of the cases examined below, Law Society o f Tasmania v Richardson12 and Re Humzy-Hancockn concern inadvertent academic misconduct which could arguably have been prevented if the students in question were better educated about it.

Ill R elevant Legislation State and territory legislation with respect to legal practice is substantially consistent throughout Australia. Therefore, this section examines the Western Australian legislation in detail by way of example. The similarity between state and territory legislation is primarily due to a Legal Profession Model Bill, the current edition of which was publicly released in 2006 by the Law Council of Australia and the Standing Committee of Attorneys-General which the Australian states (with the exception of South Australia) used as a template to enact consistent legislation.14 P l a g i a r i s m a n d A c a d e m i c M i s c o n d u c t b y La w S t u d e n t s

101

The Legal Profession A ct 2008 (WA) provides that an applicant must be a ‘fit and proper person’ to be suitable for admission to legal practice.15 The Act does not specifically mention academic dishonesty. However, the Supreme Court or the Legal Practice Board can consider ‘suitability matters’.16These include ‘whether the person is currently of good fame and character’17 and whether the person ‘has been the subject of disciplinary action, however expressed, relating to another profession or occupation that involved a finding of guilt’.18 This could include a finding of past academic dishonesty against the applicant. For the avoidance of any doubt, the Supreme Court or the Legal Practice Board has a broad discretion to consider ‘any other matter it considers relevant’ in determining an applicant’s suitability for admission.19 Relevantly, in the Northern Territory, the legislature has gone one step further by specifically including ‘academic dishonesty (including, for example, plagiarism)’ as a suitability matter.20 So too, has Victoria, where the Board of Examiners, in making a recommendation to the Supreme Court as to whether an applicant for admission is a fit and proper person, can consider suitability matters, and also whether the person is currently, or has been the subject of disciplinary action when completing their ‘academic qualifications’ or when completing their ‘approved academic legal training requirements’.21 Furthermore, in Victoria the Board is empowered to request documents held by the academic or training institution that is relevant to this disciplinary action.22 The Western Australian Legal Practice Board is empowered under the Legal Profession A ct 2008 (WA) to make ‘admission rules’.23 The Board can make rules about ‘the disclosure of matters that may affect consideration of the eligibility of an applicant for admission, or affect consideration of the question of whether the applicant is a fit and proper person to be admitted, including convictions that must be disclosed and those that need not be disclosed’.24 The Board has made the Legal Profession (Admission) Rules 2009 (WA) which provide that applicants for admission must lodge a ‘notice of application for admission’ with the Board no later than two days after lodging it at the Supreme Court.25 This notice is in the form of a statutory declaration.26 Section B requires the applicant to make any applicable disclosures. Question 7 in this section asks whether one or more of the ‘suitability matters’ apply to the applicant and requires them to give ‘full details of all the facts and circumstances’ in a further statutory declaration. Given that a suitability matter could include academic misconduct, the applicant should disclose any past findings of academic misconduct, and if they are in doubt about whether they should disclose, an application for early disclosure, and a declaration from the Board in response thereto, can be made.27 If a person has managed to obtain admission as a legal practitioner without disclosing a prior finding of guilt of academic dishonesty in their undergraduate degree, they are likely to have contravened the Legal Profession Conduct Rules 2010 (WA). These Rules provide that a legal practitioner must not engage in conduct which would demonstrate that they are not a fit and proper person to practise law, that may affect public confidence in the administration of justice of bring the legal profession into disrepute.28 The Rules also provide that a practitioner’s ‘duty to the court’ is ‘paramount’.29 It is therefore arguable that a person who is admitted, but later discovered to have committed academic dishonesty whilst at University that they did not disclose at the time of admission, would be regarded as misleading the Court and failing in this duty.30 As noted above, there are similar provisions across the Australian states and territories. Significantly, what each jurisdiction has in common is the requirement for applicants for admission to be ‘fit and proper persons’before they can be admitted by state and territory Supreme Courts as legal practitioners.31 In other words, persons must be of good and honest character before they can be admitted to legal practice. Consequently, in each jurisdiction, a finding of academic dishonesty

102

M ic h e l l e E v a n s

whilst at University could bring an applicant’s character into doubt and result in their admission being refused, or their practising certificate being revoked if they have been admitted to practice before the allegation of misconduct has been brought to the attention of the relevant Legal Practice Boards and Supreme Courts. The next section of this paper shows how an allegation of academic misconduct can bring an applicant’s character into question through an examination of relevant case law.

IV An Overview

of the

Case Law

This section outlines the case law where applicants’ applications for admission as legal practitioners have been challenged on the basis that they were not fit and proper persons, or in other words, persons of sufficiently good character, due to findings of academic misconduct against them in their undergraduate University studies. It also examines a case in which a legal practitioner was ‘struck off’ the roll of legal practitioners, and therefore unable to practise law due to failing to disclose an adverse finding of academic misconduct against him from his University studies. These cases are illustrative of the very dire consequences that students can face later in their careers if they have had a finding, or even an allegation, of academic misconduct against them in their undergraduate studies. In Law Society o f Tasmania v Richardson32 the Law Society of Tasmania sought orders in the Supreme Court of Tasmania that Scott Richardson, together with his parents, Anita Betts and Gregory Richardson, be ‘struck off’ the Court’s roll of legal practitioners. The basis for these orders was that in 1999, whilst he was a fifth year Law/Arts Student, Scott had been found to have committed academic misconduct by the University of Tasmania’s academic misconduct committee in a drafting assignment in his Equity and Trusts unit. Richardson did not disclose this finding of academic misconduct at the time of his admission. Further, his parents, Anita Betts and Gregory Richardson (as junior counsel and senior counsel respectively) had moved his admission in the Supreme Court of Tasmania, knowing of the misconduct finding of the Committee. There were, however, valid reasons as to why they did not disclose, which will be explained below. The details of the alleged academic misconduct were that another student, X, asked for Scott’s help with his assignment because he had missed the lecture in which it was handed out. Student X had also missed other lectures which would have assisted in answering the assignment. Scott met him in the University library, showed him the Australian Encyclopaedia o f Forms and Precedents and discussed each assignment question with him in a library discussion room, making notes on his own substantially completed version of the assignment. At the end of their meeting, X asked for a copy of Scott’s assignment on which he made notes, and Scott made a photocopy and gave it to X. Scott then went home, and completed his assignment by adding in the amendments as per his notes. At no time did Scott give student X permission to copy his assignment. At the time of his initial Committee hearing, all matters of academic misconduct had to be automatically referred to the Committee. However, the University Regulations were subsequently amended so that the Head of School could deal with less serious matters. It was acknowledged that if Scott Richardson’s misconduct had occurred after the Regulations were amended it would have fallen into this less serious category. The Committee’s findings were somewhat unclear and were criticised by the Court. For example, Crawford J stated that it was student X who had committed academic misconduct, and not Scott who had done his assignment independently (with some guidance from his mother), and who had had his work copied by student X. Crawford J’s judgment was also critical of the Committee, stating that it was unclear why they thought

P l a g i a r i s m a n d A c a d e m i c M i s c o n d u c t b y La w S t u d e n t s

103

that Scott’s conduct amounted to academic misconduct33 and it was not clear as to what type of academic misconduct it was. In fact, Crawford J accepted that Scott himself was unsure of what he had done wrong from reading the Committee’s determination.34 Crawford J also pointed out that the Committee had made a finding in Scott’s favour. This was that Scott did not believe he was doing anything wrong or committing academic misconduct when he gave his draft assignment and notes to student X.35 A further mitigating factor was that Scott had lodged an appeal on the basis of a denial of natural justice by the Committee. There was a delay in hearing the appeal, which was not followed up by Scott until the Law Society had indicated that Scott should have disclosed the finding of misconduct. When the Law Society threatened proceedings against him, Scott followed up the appeal, which was then heard by the Discipline Appeals Committee who set aside the Committee’s initial finding. Crawford J commented that even though the Law Society was aware of this, they continued with their application to the Supreme Court to have Scott and his parents removed from the roll.36 The Judge was particularly critical of the Law Society in proceeding against Scott and his parents when it knew that the initial finding of the Committee had been set aside for a denial of natural justice.37 In dismissing the case against Scott Richardson and his parents, Crawford J outlined how Scott had appropriately sought advice from his parents, the Equity and Trusts Lecturer and Head of School about whether the misconduct finding should have been disclosed. Relying mainly on his parents’ advice that it was unclear what the Committee’s finding was, and that it did not appear that he had done anything dishonest or that would show him to be less than a fit and proper person to practise law, and their belief (subsequently substantiated on appeal) that he had been denied natural justice, Scott decided against disclosure, as did his parents. The case is an illustrative example of how a student can suffer severe consequences from inadvertent academic misconduct. Due to an error of judgment made by Scott in sharing his assignment with another student, Scott and his parents undoubtedly suffered much stress and anxiety, including having to be subject to court proceedings against them which jeopardised their livelihoods, professional integrity and reputations. In a subsequent Queensland Court of Appeal case of Re AJG,38 AJG was denied admission to the Supreme Court of Queensland because he had copied the work of another student, M, in his Practical Legal Training Course. This was the first and only finding of academic misconduct against AJG. His admission was denied, with the overall order of the Court being that the matter could not be re-listed before 6 months from the date of the order. Interestingly, AJG had disclosed the finding of academic misconduct against him, and the Solicitors Board did not oppose AJG’s application on the basis that he was under financial and personal pressure at the time of the incident. The Chief Justice, de Jersey CJ, with whom the other Justices (Jerrard JA and Philippides J) agreed, stated that applicants such as AJG had been given fair warning by the Court because at the last Admissions Sitting, the Court had indicated that it would be ‘strengthening ... its response to situations like this on the basis adequate warning had been given’.39 The Court noted that AJG was well aware of the consequences of such academic conduct so close to his time of admission, but had ‘turned his face, at least recklessly, against those possible consequences’.40 The Chief Justice explained that although M, whose work had been copied, had been admitted as a practitioner of the Court, it did not follow that AJG should be admitted too. The Chief Justice explained:

104

M ic h e l l e E v a n s

The applicant’s offence is graver. He committed it at a time when he concededly appreciated its possible affect on his application for admission and he applies now at a time when the Court has been signaling a likely stronger approach. Legal practitioners must exhibit a degree of integrity which engenders in the Court and in clients unquestioning confidence in the completely honest discharge of their professional commitments. Cheating in the academic course which leads to the qualification central to practice at a time so close to the application for admission must preclude our presently being satisfied of this applicant’s fitness.41

AJG’s situation was undoubtedly made worse due to the closeness of his admission date to the academic misconduct, and his choice to deliberately copy the other student’s work, instead of, as the Chief Justice pointed out, asking for an extension on the assignment.42 However, Re AJG is an illustration that even a single finding of academic misconduct can have a severe impact on an applicant for admission. In the Queensland case of Re Livieri,43 an applicant was denied admission as a legal practitioner by the Queensland Court of Appeal because she had plagiarised in three assignments whilst a student at the Law School at James Cook University. In December 2002, as a 27-year-old law student, it was found that she had submitted an assignment in her Law of Trusts unit which was substantially an article written by a Professor at Oxford University and published on the internet. The assignment was almost identical to the original article with some minor changes (two paragraphs and a heading were omitted). The applicant claimed that her plagiarism was ‘inadvertent’ because she had submitted the wrong document as her assignment. Four days after she was told about the allegation of plagiarism she asked, and received permission, to submit her ‘original’ assignment. According to the University’s delegate who examined the allegation of plagiarism, this assignment was so poor that it appeared that the applicant had written it in those four days in order to avoid a finding of plagiarism. The University’s delegate concluded that the applicant’s plagiarism was ‘blatant’.44 This prompted the University to re-examine other assignments previously submitted by the applicant. This re-examination revealed two more occurrences of academic misconduct. The applicant was found to have used substantial academic commentary without referencing its source in her Administrative Law assignment in 2000. In addition, in a Law of the Sea assignment in 2002 she used the same words as a government publication, again without referencing the source.45 In 2004, when the applicant disclosed these findings of academic misconduct against her to the Legal Practitioners Admission Board of New South Wales in her admission application, the Board rejected her application. The applicant’s response to the Board was that she has submitted the wrong Law of Trusts assignment as a result of ‘inadvertence’ and ‘mistake’.46This was also the applicant’s position when she made a subsequent application for admission in October 2005 where she stated in her application to the Court that the University had ‘leveled [sic] three instances of academic misconduct against me’.47However, prior to this, in April 2005, the applicant’s Counsel had stated to the Board that she accepted she had acted dishonestly. Again, in 2006, the applicant, in her statement to the Court admitted that she had acted dishonestly and stated that she accepted ‘full responsibility’.48 This was seen by the Court of Appeal as an opportunistic wavering of her acceptance of responsibility which they considered unfavourably. In deciding that the applicant was ‘unfit’ for admission as a legal practitioner, the Court of Appeal stated: P l a g i a r i s m a n d A c a d e m i c M i s c o n d u c t b y La w S t u d e n t s

105

The findings against the respondent involve serious plagiarism, committed more than once. At relevant times, she was a person of mature years - 25 and 27 years old. Her unwillingness, subsequently, to acknowledge that misconduct, establishes a lack of genuine insight into its gravity and significance: for present purposes, where the Court is concerned with fitness to practice, that aspect is at least as significant as the academic dishonesty itself. It could not presently be concluded that the applicant is fit for admission as a legal practitioner.49 The Court later stated how difficult it would be for the applicant to make a subsequent application for admission, particularly due to the inconsistency in her acceptance of responsibility for her conduct in the past: If and when the application does again come before the Court, the Court will need to be persuaded on appropriately cogent material that a finding of fitness is warranted. The mere lapse of time would not, without more, in a case of this overall concern, warrant the Court’s concluding that fitness has been demonstrated. It is especially the applicant’s subsequent attitude to the established misconduct which warrants a circumspect approach.50 In summary, in R e Livieri, the academic misconduct was more ‘clear cut’ in that it occurred on several occasions. Also, the applicant had altered her testimony in order to present herself in a more favourable light in order to achieve admission, thus compromising her integrity and fitness to practise. In R e E u m zy-E a n co c k51 a single Judge of the Supreme Court of Queensland allowed Humzy-Hancock to apply for admission as a legal practitioner even though he had committed academic misconduct whilst at University. The facts were that w hen Humzy-Hancock applied for admission to the Supreme Court o f Queensland, he disclosed in his admission application that he had been found to have committed academic misconduct whilst a law student at Griffith University. The Legal Practitioners Admissions Board o f Queensland opposed his admission on the basis o f this misconduct. The first instance o f plagiarism was found to have occurred in 2003, w hen Humzy-Hancock was found to have colluded w ith another student in Torts and Accident Compensation. He admitted that he had discussed the assignment w ith the other student and that they had shared their research notes and ideas about the structure and answer to the assignment, but claimed that he did not know that this amounted to academic misconduct. The Law Faculty’s Assessment Board, which determined the matter in February 2004, also found that a ‘virtually identical’52 paragraph from Humzy-Hancock’s assignment had been directly copied into the other student’s assignment from an electronic version, together w ith a conclusion to which the other student had made minor amendments.53 However, Humzy-Hancock denied knowingly giving the other student a copy o f his assignment and asserted that the other student had access to his personal computer and could have accessed his assignment without his knowledge. Despite the finding of ‘knowingly permitting his assignment, or parts o f it, to be at least read by the other student, if not copied’ by the Law Faculty’s Assessment Board, Philip McMurdo J held that the allegation o f collaboration had not been properly established and that Humzy-Hancock’s explanation of the other student having access to his computer, and therefore a copy o f his assignment, was ‘not so im probable’.54 The next finding o f academic misconduct, specifically plagiarism, occurred in HumzyH ancock’s International Trade Law assignment in 2005. At the time Humzy-Hancock was working 4 days a week and studying full time. This assignment contained approximately 10

106

M ic h e l l e E v a n s

instances of ‘inadequate’ referencing.55 Some examples of this included using verbatim wording from an author whilst only including a footnote instead of a footnote and quotation marks;56 a footnote at the end of a paragraph which gave the impression that the last sentence was being referenced instead of the whole paragraph which was a substantial ‘reproduction’ of the original;57 and two paragraphs copied from a journal article with the first not being referenced and the second being incorrectly referenced.58 Philip McMurdo J stated in his judgment that the issue was whether Humzy-Hancock had the ‘intent ... to represent that the work of others as his own work’. The Judge later noted that ‘there was no specific finding [by the University] that ... this was done knowingly, or in other words, with an intention to pass off ... [the] work as his own’.59 Once again, the Judge accepted that these instances occurred as a result of Humzy-Hancock’s ‘carelessness and his misunderstanding of what was required’ and that it was not enough to constitute plagiarism under the University’s plagiarism policy.60 The third finding of academic misconduct against Humzy-Hancock was plagiarism in a take home test, also in the International Trade Law unit, in 2005. It was Humzy-Hancock himself who brought it to the attention of the Misconduct Committee. He wrote to the Committee’s Chair after receiving notification that a misconduct allegation had been made against him in his first International Trade Law assignment. Although the allegation with respect to this first assignment had not been finally determined, he realised that he may have made the same referencing mistakes in his take home test. Due to his disclosure, the Misconduct Committee dealt with the assignment and test as ‘one charge of academic misconduct’. He failed the subject and was ‘excluded’ from the University for 6 months.61 With respect to the sum of these allegations of academic misconduct, Philip McMurdo J concluded that ‘[n]one of the allegations of plagiarism is proved. I find that in each case the failure to give proper attribution was the result of poor work and not an intention to pass off the work of another as the applicant’s work’.62 Given the previous strict approach of the Supreme Court of Queensland, Humzy-Hancock was remarkably fortunate. In fact, there has been strong criticism of the case on this basis.63However, he did have to endure court proceedings which could have a significant impact on his future employment prospects. One wonders if these allegations of academic misconduct and eventual court proceedings could have been avoided altogether if Humzy-Hancock had been better educated about what constituted academic misconduct.64 In the Matter o f OG, a Lawyer65 the Full Court of the Supreme Court of Victoria considered whether a Legal Practitioner should be struck off the roll of practitioners because he failed to disclose an allegation of collusion made against him whilst he was a student in his Bachelor of Business and Bachelor of Laws double degree at Victoria University. The alleged collusion occurred with another student, GL, in the second assignment in OG’s Strategic Marketing and Planning unit. The first assignment was a group assignment and OG and GL were both in the same group. Approximately three weeks after submission, GL learnt from his tutor that his assignment had been withheld and that he should see the Faculty of Business Topic Coordinator about it. GL had an interview with the Coordinator, in the presence of another Marketing Lecturer. He was told that there were approximately 26 similarities to OG’s assignment and asked to explain how this had occurred. GL denied colluding with OG but admitted that he had shared the content of some notes he made about the assignment with OG and that they had discussed how they would structure it and the approach they would take. The coordinator said that he would speak with OG and if it appeared that they had colluded, he would receive zero for the assignment. GL deposed that he had spoken to OG on his mobile telephone after the meeting, and told him about the allegation

P l a g i a r i s m a n d A c a d e m i c M i s c o n d u c t b y La w S t u d e n t s

107

of collusion, and also e-mailed him, but OG denied that the conversation had occurred or that he had seen the e-mail. OG, who was overseas at the time of GL’s meeting, met with a different Professor, Professor Polonsky, because the Coordinator was on leave, and the same Marketing Lecturer having received a letter asking him to make an appointment. At the time of the case Professor Polonsky did not have any recollection of his meeting with OG, and no file note was made, but confirmed that the standard practice was to put the allegation of plagiarism to the student and to require them to explain. However, OG claimed that he had not been accused of ‘plagiarism’ or ‘collusion’, but that he had been told he was to be given zero for the assignment because he had misunderstood what was required and that it was not good enough to receive any marks. After graduation, GL and OG completed a practical legal training course. One of the lectures in this course outlined the Board of Examiners’ disclosure requirements. Students at the training course were instructed that any allegation of plagiarism or University disciplinary action had to be disclosed. GL testified that he had a conversation with OG, which OG denied took place, as to whether GL should disclose that they had been suspected of collusion. OG stated that it was not a formal disciplinary incident and that it was not explicitly referred to as collusion in his meeting with Professor Polonsky and the Marketing Lecturer so he did not believe that it had to be disclosed. GL’s version of events was corroborated by two other students who gave evidence that they overheard a number of discussions on the subject of disclosing the collusion allegation between GL and OG. Despite OG’s insistence that it should not be disclosed, in his disclosure letter to the Board of Examiners, GL disclosed the allegation of collusion ‘with another student’,66 but did not name OG. GL gave evidence that he showed his letter to the Board to OG, and the Board’s response in which they called GL to a special hearing. Once again, OG denied having this conversation, but then wrote his own disclosure letter stating that he received zero for a Marketing subject because he ‘misunderstood’ that it was a group assignment, and instead that he had written up the assignment individually. He further stated that, ‘[n]o record of the event was ever recorded and at no time was it suggested to be plagiarism or the like’.67 The Secretary of the Board of Examiners viewed this disclosure as minor and he was granted a certificate to apply for admission. At his Board hearing, GL was asked to produce a copy of the assignment showing the similarities, which he did. The Board also asked about the identity of OG which GL disclosed. The Board also commenced a review into OG’s original admission application. They also asked OG to appear at a subsequent hearing into GL’s admission application which he attended, but refused to answer any questions. Even though GL denied the collusion, albeit admitting to sharing his notes, answer plan and discussing the answer with OG, the Board deemed GL not to be fit and proper for admission. The decision does not detail why GL’s admission was denied. However, it appeared to be because the Board thought that he had withheld some relevant information. Specifically, this information was that GL had read out his notes from his notebook to OG who copied them down. These notes comprised his structure and the answer of the assignment, The Board then gave a report to the Supreme Court stating that it seemed that OG’s disclosure was ‘inaccurate’ and ‘appears to involve a lack of candour’.68 The Legal Services Board successfully challenged OG’s admission on the basis that he had not made an accurate disclosure to the Board of Examiners. In fact, OG was shown to have been deliberately untruthful before the Court in his evidence on a number of occasions. The Full Court found that OG ‘deliberately or recklessly misrepresented to the Board of Examiners the circumstances in which he came to be awarded a zero grade or mark for his second assignment’.69 The Judges further stated that, ‘it

108

M ic h e l l e E v a n s

cannot be doubted that the Board of Examiners would not have granted OG a certificate if it has been aware of the misrepresentation. He should not be permitted to benefit from the fact that he managed to mislead them’.70 In summary, In the Matter o f OG, a Lawyer is a concerning case because, on the one hand, whilst OG’s conduct was proven to have been dishonest and worthy of a denial of admission, the much less blameworthy GL still appears to have been treated somewhat harshly. At worst, GL was guilty of a one-off incident of academic dishonesty (collusion). He acted ethically in disclosing that he had been suspected of collusion, and despite the fact that there was only an allegation of collusion with no definitive finding, GL was nevertheless denied admission. This highlights the serious nature and impact of even an allegation of plagiarism on the future legal career of a student. It raises the question as to whether some of these incidences and allegations of academic misconduct could have been prevented in the first place by better educating students about what academic misconduct is (including cautioning them against sharing preparatory notes, or draft assignments), and the potential dire consequences of it on their future legal careers.

V Problems

with a

D etection A pproach

The case law discussed above illustrates the serious consequences for students of even a single finding, or mere allegation of academic misconduct. It is therefore argued that education could be effective in preventing these from happening in the first place. This is further supported by an examination of academic literature which reveals several problems with a detection, rather than prevention approach. This section highlights some of these problems. Firstly, plagiarism detection software is limited in scope and does not detect all cases of academic dishonesty. For example, Atkinson and Yeoh note that even though it is effective in detecting plagiarism from the internet, this software often does not detect plagiarism from text books, past assignments and electronic databases, or collusion.71 They also acknowledge that even if the software detects plagiarism, it still requires substantial time and effort on the part of the individual lecturer to investigate it.72 The problems with plagiarism detection software, such as Turnitin, are also acknowledged by Bretag and Mahmud who recommend that the software must be employed together with the Lecturer’s ‘considerable manual analysis and subjective judgement’.73 Any academic staff member who has had to investigate potential plagiarism will note the significant time and resources expended in investigating whether a plagiarism claim can be substantiated, and if so, whether it is deliberate or inadvertent.74White et al go so far as to argue that such software may assist a student who has committed substantial and deliberate plagiarism by allowing them to check it and change it until it is approved by the software.75 It is perhaps due to these deficiencies that plagiarism detection software is under-utilised by law schools.76 This is observed by Crisp, who surveyed 39 academic staff at the University of Adelaide from a range of disciplines about their attitudes towards plagiarism. Only 28 per cent of those surveyed allowed their students to self check their work by running it through Turnitin before submission.77 Also, the increasing practice of dividing assignments between several markers due to increasing student numbers may result in collusion or purloining going undetected. The fact that such databases are flawed and involve staff spending substantial time investigating allegations of plagiarism lends weight to the argument that education and prevention are the preferable approach. Even if it could be said that plagiarism detection software had some effectiveness in detecting cases of plagiarism, it has a limited effect, if any at all, in preventing plagiarism. Keuskamp and Sliuzas analysed the extent to which plagiarism detection software could ‘improve students P l a g i a r i s m a n d A c a d e m i c M i s c o n d u c t b y La w S t u d e n t s

109

understanding of plagiarism and academic integrity’.78 The authors examined the reports of 21 students who had submitted university assignments via SafeAssignment to see the extent of any plagiarism detected and what type of information the students received from the reports generated. The conclusion of the authors was that these reports send a ‘clouded message to students regarding whether or not plagiarism has occurred in their assignments’.79 This is because the reports gave statistics and percentages of matching text and required further interpretation. As an educative tool, the reports were insufficient to educate students about plagiarism. Thus, this software has limited effectiveness in educating students against, and preventing inadvertent or unintentional plagiarism. Atkinson and Yeoh, in their study of the plagiarism detection software EVE2, surveyed 171 students and interviewed six students and six staff from the Business School in October 2004 about whether they thought the software was effective in preventing and detecting plagiarism. The students surveyed and interviewed agreed with the use of the software and thought it would help prevent plagiarism, but were concerned about being caught for ‘unintentional plagiarism’.80 This illustrates that whilst plagiarism software may prevent some students from plagiarising due to the fear of being caught, a ‘prevention by fear’ approach is premised on the student actually understanding what plagiarism is in the first place and making a deliberate choice to reference properly. It is relatively easy as an academic to be cynical about plagiarism, to assume that students know what plagiarism and other forms of academic dishonesty are, and that they have made a deliberate choice to commit it. This is discussed by Leask who examines plagiarism as a metaphor.81 She argues that perceptions of dealing with plagiarism centre upon plagiarism being a ‘crime’ and there being ‘battles’ or ‘w ar’ to prevent it.82Leask argues that we need to rethink these metaphors so that there is a ‘shared responsibility’ between staff and students which involves students being taught about plagiarism and an appreciation that the academic environment may be quite foreign to students who may not be deliberately trying to cheat. 83 In addition, Crisp, in the study referred to above, found that a majority of the academic staff surveyed felt that there needed to be ‘a more common understanding’ amongst staff of what constitutes plagiarism.84 Further, only 31 per cent of staff were aware that the University’s Staff and Student Development Unit had ‘plagiarism prevention resources’ to help both staff and students. 85This raises the concern that if staff are uncertain about what plagiarism is, students are likely to be too. Further, Samuels and Bast argue that a ‘don’t plagiarise’ warning is insufficient. 86 They suggest that plagiarism must be clearly defined and communicated to students so they understand what it is and what is expected of them.87 These authors also suggest that students must be taught citation and referencing skills so that they do not inadvertently plagiarise, and recommend the structuring of assignments so that it is difficult for students to plagiarise.88 This will be discussed in further detail in the following section. In summary, this literature shows a greater need for the education of both staff and students about what plagiarism and other forms of academic misconduct (such as collusion) in order to prevent it. Finally, students who obtain work experience at law firms are sent conflicting messages about when and whether to acknowledge the original source of the work. Wyburn notes that the definition of plagiarism is unclear and that there is conflict between academia and legal practice concerning what does and does not constitute plagiarism.89 She gives the example of junior solicitors drafting letters of advice which are sent to the client under the name of the supervising partner.90 These confused messages could result in confusion as to what is and is not appropriate at Law School. They could even result in inadvertent plagiarism, such as a student using a law firm’s precedent document in a legal drafting assignment instead of drafting the assignment

110

M ic h e l l e E v a n s

themselves. Even at Law School, there is an increasing requirement in some subjects to undertake group work and group assessment, with the justification that in legal practice, teamwork is often required. Unless the parameters of these forms of group assessment are made clear, they could send conflicting messages to students about collusion. Once again, this highlights the need for education as to what is and is not acceptable referencing at law school. In summary, there are many flaws in a detection approach to plagiarism. These include the: • • • • •

limitations of plagiarism detection software such as its failure to detect collusion and plagiarism from some texts, such as scholarly books; the allocation of assignments to several markers, thereby making it more difficult to detect collusion or purloining; time that academic staff must spend investigating allegations of plagiarism; lack of staff and student understanding about what academic misconduct is, and the ‘mixed messages’ that are sent to students about what is acceptable practice; and lack of effectiveness of a detection approach in educating students about what constitutes plagiarism and other forms of academic misconduct at University in order to prevent it.

These flaws can be overcome through the adoption of a preventative approach in which students are educated about academic misconduct and its consequences in order to prevent it. This will also serve to emphasise to students that they are entering into an ethical profession where honesty and integrity are of the utmost importance. There are also strategies that law teachers can adopt, for example, through the formulation of assessments, to make plagiarism difficult. These will be discussed in the next section of this paper.

VI Suggestions

for

Law Teachers

This section makes suggestions as to how plagiarism, and other forms of academic misconduct can be prevented through educating students about what academic misconduct involves, and the dire consequences of a finding or allegation of plagiarism on their future legal careers. This paper suggests that a scaffolding approach could be utilised and incorporated into a skills matrix to reinforce students’ understanding of academic misconduct and its consequences in order to prevent it. Many students, particularly those entering into law studies straight from school, will not have heard of plagiarism or collusion, for example, before entering Law School, because of the way in which they are taught at high school. This could equally be the case for mature aged students who do not have a previous degree. Grantham, writing in her capacity as Information Services Coordinator at a Catholic high school, and whose focus is on preventing and educating staff and students about plagiarism in high school,91 provides some useful insights into educational practices that may encourage plagiarism in schools that students may carry with them into university, resulting in inadvertent plagiarism. For example, Grantham notes that, at school, students are not often asked to give their own opinions in assignments. Rather, they are expected to collate facts about a particular topic and present them without any creative thought. This encourages a ‘cut and paste’ approach.92 Grantham’s article highlights how beneficial teaching students about plagiarism, critical thinking and good referencing practices at high school is in preventing plagiarism when they reach University. However, most students are unlikely to have received any such training at school. In addition, recent years have seen a lowering of entrance P l a g i a r i s m a n d A c a d e m i c M i s c o n d u c t b y La w S t u d e n t s

111

requirements at some law schools and a corresponding increase in the inadequacy of students’ English and grammar skills,93 which can lead to poor research and referencing skills.94 When students reach University, the first information that they are likely to receive about academic misconduct is in their first year units. Typically, a student may have a lecture or seminar on plagiarism in their Legal Research and Writing unit. Thereafter, students are likely to receive a warning in their unit outlines for each unit, perhaps backed up by a verbal warning from the lecturer in the first lecture of each unit, and/or assignment instructions telling them not to commit plagiarism and other forms of academic misconduct such as collusion, and referring them to the relevant sections of the University’s academic misconduct policy. When students start submitting assignments, they are likely to have to sign and attach a statutory declaration to their assignment, attesting that the work is their own and that all sources have been properly acknowledged. Although this ‘don’t plagiarise’95 message is reiterated on many occasions there is subsequently little or no substantive discussion or explanation about what the various types of academic misconduct such as plagiarism and collusion involve. Students may therefore think that their referencing is sound, but may in reality be committing inadvertent plagiarism. Even if plagiarism is inadvertent and not intentionally dishonest, it may nevertheless detrimentally impact on their future admission applications. Consideration also needs to be given to international students’ understanding of academic misconduct due to the increased internationalisation of Australian Universities, and the frequency of Australian Universities running off-shore programs. The importance of clear education about academic misconduct for students from non-English speaking backgrounds is emphasised by Song-Turner who examined plagiarism in the context of this increased internationalisation.96 Song-Turner surveyed 68 postgraduate international students to assess their understanding of plagiarism. The findings of this survey showed that although students overall understood that plagiarism was ‘morally wrong’ they were less certain about what plagiarism was when it was ‘indirect’.97 For example, only 79 per cent of students thought that ‘copying substantive amounts of text, without using quotation marks’ constituted plagiarism.98 The author also surveyed students about why plagiarism occurs. This revealed a variety of factors including not knowing something constituted plagiarism (42%), problems with English expression (31%) and having ‘too many’ assignments (18%).99 Song-Turner recommends that universities need to more clearly define plagiarism, provide increased support for international students such as language training, and appreciate cultural sensitivities such as international students wanting to use the same words as a ‘foreign expert’ in order to show them respect.100 Academics should, however, be mindful about stereotyping international students. For example Leask argues that metaphors surrounding plagiarism discriminate against Asian students by categorising them as ‘rote, surface learners’.101 Further, in a study of Australian and Asian students’understanding of plagiarism, Maxwell et al reported no significant difference between the two groups in terms of their appreciation of the ‘seriousness and understanding of plagiarism’.102 They found that both groups of students did not recognise some forms of plagiarism, such as resubmitting an assignment already completed and assessed for another unit, or using a direct quote with a footnote but no quotation marks.103 Nevertheless, it is fair to say that students who are studying in another language, away from their home environments and families may be at a disadvantage, and may face the risk of inadvertent plagiarism, if they are not specifically taught about academic misconduct and how to avoid it. Given that a majority of students entering University are likely to be unclear as to what exactly constitutes academic misconduct, what can be done to educate them about it? As noted

112

M ic h e l l e E v a n s

above, it is suggested that a multi-layered scaffolding approach could be adopted to emphasise to students the importance o f precise and accurate referencing and the importance o f submitting their own, independent work for assessment. It is argued that a combination o f the following approaches could be adopted: •

Given the confusion amongst staff as well as students as to what plagiarism, and other forms of academic misconduct involve, a useful starting point is that academic staff should be educated by their University about the exact definitions of plagiarism and other forms o f academic misconduct, as w ell as receiving training about the University’s Academic M isconduct policies and procedures. This view is supported by Leask, who suggests such education o f staff could occur in staff development seminars.104

•

Students need to be taught about correct referencing and attribution o f sources in their first year legal research and writing unit. They also need to be specifically fam iliar with the U niversity’s assessment and academic misconduct policies to appreciate their seriousness. It is suggested that students should be given a workshop on academic misconduct in which they m ust work through examples o f incomplete, incorrect or inadequate referencing and identify how they breached the relevant assessment/ academic misconduct policies. Case studies could also be utilised to engage students in discussion about whether an alleged plagiarism, for example, has occurred. Some units, perhaps in first year, could conduct student workshops on how to do specific assignments, w ith some focus being given to research and precise referencing, attribution o f sources and the importance o f submitting their own independent w ork.105 The effectiveness of this approach is confirmed in the findings o f White et al, who found, in the context o f a first year psychology unit, that tutorial exercises on plagiarism resulted in a reduction in the incidences of plagiarism detected in assignments.106

•

Students should also be taught how to use plagiarism detection databases such as Turnitin, and importantly, how to interpret the results o f reports generated by this software. Keuskamp and Sliuzas suggest that the U niversity’s Academic Language and Learning Advisors are the best persons to assist students interpret these results,107 but do not offer any suggestions about how this is to be facilitated. I would suggest that it could be undertaken as part o f a first year induction program.

•

The introduction to academic misconduct that students should receive in the first year legal research and writing unit could be built upon in another first year foundation unit, such as the Introduction to the Australian Legal System unit (or ‘Legal Process’ as the unit is know n in some universities). For example, students could be given a mock research essay to ‘m ark’ which covers a topic that is being taught in the course. Students will need to find and read the sources cited in the bibliography o f the mock research essay, and conduct further research to find plagiarism and other inaccuracies in referencing. By requiring students to put themselves in the exam iner’s position, it enables them to critically engage, and to more fully think about and appreciate accurate and precise referencing whilst engaging w ith the subject matter being assessed.

•

Some education literature suggests that assessment should be designed so that it is difficult for students to commit academic misconduct108 and it has been noted that some academics are making a deliberate decision to do this.109 For example, it has been suggested that problem questions should be given to students instead o f research essays110 to reduce the risk o f plagiarism because students must apply the law to the particular factual scenario, and

P l a g i a r i s m a n d A c a d e m i c M i s c o n d u c t b y La w S t u d e n t s

113

cannot simply copy from a book or a journal article. Similarly, students could be required to put themselves in the position of a judge and complete a partially completed court judgment, or to write a memorandum of advice to the managing partner of a law firm. These forms of assessment most certainly have merit and teach students important skills. Encouraging students to think critically and imaginatively has also been found to reduce the incidence of plagiarism.111 However, it would not form part of a well rounded education to make every assessment in every unit problem or case study based. Also, arguments that problem based assessment should be used to reduce the incidence of plagiarism overlook the fact that a well designed research essay can achieve the same objectives. If lecturers devise original assessment topics on new case law, legislation and emerging legal issues that have limited academic commentary on them, it will be more difficult for students to be able to copy or adapt commentary from text books or internet sources.112 This type of innovative and original assessment can encourage critical thinking skills and independent thought, whilst also reducing the risk of plagiarism. •

Unit co-ordinators should also be mindful to not discourage students from adequately referencing by placing a word count on footnotes and bibliographies or referencing lists. By all means, unit co-ordinators could require commentary in footnotes to be counted in the word count. However, references to primary and secondary legal resources should be excluded from the word count. Unit co-ordinators should also make it clear to students that they should not hesitate to raise any questions about referencing with their unit co-ordinator, lecturer or tutor with respect to their assignments. The writer has sometimes seen lecturers setting the same or similar assignment question to those set in previous years. This should be avoided to reduce the risk of a student purloining another student’s assignment from a previous year.113

•

As noted above, education about academic misconduct, including plagiarism, should not simply be left behind in first year. There needs to be some reinforcement in subsequent years of the law degree, particularly in the second and third year of the degree, in addition to the usual notification in unit outlines and warnings given by unit co-ordinators in the first lecture. For example, in courses such as Administrative Law, students could learn about delegated legislation, the application of policy, decision making by statutory Committees (using the example of University Disciplinary Committees) and/or statutory interpretation in a tutorial, lecture or workshop with reference to the relevant University Regulations and assessment policy.

•

Although the study of Legal Ethics and Professional Responsibility is usually left until the final year of the law degree, consideration should be given to moving it to the second or third year of study. This would provide an excellent opportunity to discuss the importance of accurate and precise referencing and academic honesty, and the impact on students’ future legal careers if they fail to adhere to these standards. The admission rules and case law described above could be utilised as part of this discussion, as well as the relevant Professional Conduct Rules. This would also educate students about the ethical nature of the legal profession early in their degrees which would serve to enhance their legal education and understanding of ethical issues.

114

M ic h e l l e E v a n s

VII Co n clu sio n Plagiarism, and other forms of academic misconduct are serious breaches that can impact on a law student’s future admission and legal career. As little as a single finding, or even an allegation of plagiarism that was not at the time able to be substantiated, should be disclosed and may be viewed by a State Legal Practice Board or Supreme Court as a sign of the applicant’s lack of good character, and consequently, unsuitability for legal practice. These serious consequences warrant a preventative, rather than ‘catch and punish’ approach, with the latter, in any event, having been shown to have limited effectiveness. The lack of effectiveness of a catch and punish approach as a preventative strategy is illustrated by the deficiencies in plagiarism prevention software, and students’ frequent (and sometimes academic staff’s) misunderstanding of exactly what constitutes plagiarism. Further, academic staff can expend considerable time and effort investigating, and attempting to determine whether the academic misconduct was deliberately dishonest or inadvertent. This is a process which is occasionally necessary for cases of actual and deliberate dishonesty, but sometimes results in an inconclusive outcome, despite the considerable time expended in investigation. This paper has offered some suggestions for Law Schools and academics that may assist to prevent academic misconduct. These include: better education for both staff and students as to what academic misconduct is; a scaffolding approach so that students are taught about correct referencing and citation beyond the first year of their degrees; teaching students how to utilise and interpret the reports generated by plagiarism software such as Turnitin to check their assignments prior to submission; carefully formulating assessment to encourage critical and original thinking; encouraging dialogue with students about correct referencing; omitting footnotes and bibliographies/reference lists from word limits; and altering the degree structure so that students can study and appreciate the admission, professional conduct rules and case law on academic misconduct and admission to legal practice. A preventative, education based approach that is scaffolded from the commencement of students’ law degrees will empower students to become more ethical lawyers, and will also contribute to the good standing and reputation of the Law School, and University that graduates them.

A ck n o w led g em en ts The writer would like to thank Mr Haydn Rigby for his helpful comments on this paper. Any errors or omissions are the author’s own. The writer would also like to thank the three anonymous referees for their helpful comments and suggestions.

Keywords: plagiarism; collusion; academic misconduct; law; admission; prevention; detection.

En d n o tes 1 2

The writer has used the term, ‘academic dishonesty’. However, the term ‘plagiarism’ is often used in the academic literature to refer to both plagiarism and collusion. The writer wishes to acknowledge that detection remains relevant in cases of actual dishonesty. That is, students could be educated about academic misconduct, and yet make a deliberate choice to commit it. However, it is argued that education would potentially reduce intentional (as well as unintentional) academic dishonesty because knowledge of the very serious consequences, such as denial of admission, would have a deterrent effect. Also, if students have been educated about academic misconduct, it assists in identifying actual dishonesty because students will be unable to claim their misconduct was

P l a g i a r i s m a n d A c a d e m i c M i s c o n d u c t b y La w S t u d e n t s

115

3

4

5 6

7

8 9

116

the result of carelessness or inadvertence. This would, in turn, assist in the determination of the penalty that is imposed. For example, the Murdoch University ‘Framework to Determine Degree of Academic Misconduct’ first requires a consideration of the ‘form and extent’ of the misconduct, which could range from ‘trivial’ referencing errors such as not including quotation marks, but otherwise attributing the source , to ‘major’ such as extensive copying, purloining or ghost writing. Secondly, the framework then requires consideration of the ‘level’ which involves a consideration of the ‘level of experience’ of the student and any other ‘mitigating circumstances’ such as whether the student was intentionally dishonest, or instead whether the misconduct resulted from ‘carelessness, inattention or negligence’. Consequently, if students are educated about academic misconduct throughout their degrees, some of the uncertainty as to whether a students’ academic misconduct involves dishonesty which would warrant a denial of admission, or an honest mistake that should not preclude admission, is reduced. For example, the Murdoch University ‘Assessment Policy’ provides that students must conduct themselves with academic integrity. Specifically, s 9.2 provides the following definition which emphasises the need for students to conduct themselves honestly, and the importance of the moral rights of authors or creators to be respected and acknowledged: Academic integrity is an adherence to five fundamental values: honesty, trust, fairness, respect and responsibility in all work. Academic integrity is fundamental to the operation of all scholarship, whether it be original research or undergraduate assignments. It ensures that proper credit is given to those who do the work and that their intellectual contribution is acknowledged. It ensures that proper evaluation and feedback of performance can be given and finally it buttresses the worth and reputation of academic awards on the basis they have been honestly earned. Murdoch University regards academic integrity as a fundamental value of student learning. It requires all students enrolled in the University to adhere to academic integrity in fulfilling each assessment task. See, eg, s 9.3 of the Murdoch University ‘Assessment Policy’ which lists the following as examples of plagiarism and collusion: inappropriate/inadequate acknowledgment, collusion, verbatim copying, ghost writing and purloining. See, eg, Lawskool, Editing Online (2012) . The difficulty in defining plagiarism is discussed in Mary Wyburn, ‘The Confusion in Defining Plagiarism in Legal Education and Legal Practice in Australia’ (2009) 7(1) Journal o f Commonwealth Law and Legal Education 37. See also Betty Leask, ‘Plagiarism, Cultural Diversity and Metaphor — Implications for Academic Staff Development’ (2006) 31(2) Assessment and Evaluation in Higher Education 183, 184-185; Dominic Keuskamp and Regina Sliuzas, ‘Plagiarism Prevention or Detection? The Contribution of Text-Matching Software to Education About Academic Integrity’ (2007) 1(1) Journal o f Academic Language and Learning 91, 92; Linda B Samuels and Carol M Bast, ‘Strategies to Help Legal Studies Students Avoid Plagiarism’ (2006) 23(2) Journal o f Legal Studies Education 151, 155-158; Tracey Bretag and Saadia Mahmud, ‘A Model for Determining Student Plagiarism: Electronic Detection and Academic Judgement’ (2009) 6(1) Journal o f University Teaching and Learning Practice , 49, 50-51; Christina Eira, ‘Obligatory Intertextuality and Proscribed Plagiarism: Intersections and Contradictions for Research Writing’ (Paper presented at 2nd Asia Pacific Educational Integrity Conference, University of Newcastle, Australia, 2-3 December 2005) 2 (arguing that University Regulations often contain vague definitions of plagiarism). Amanda Maxwell, Guy J Curtis and Lucia Vardanaga, ‘Does Culture Influence Understanding and Perceived Seriousness of Plagiarism?’ (2008) 4(2) International Journal fo r Educational Integrity 25, 30-31. Geoffrey T Crisp, ‘StaffAttitudes to Dealing with Plagiarism Issues: Perspectives From One Australian University’ (2007) 3(1) International Journal fo r Educational Integrity 3, 7. Bruce Lindsay, ‘Student Plagiarism in Universities: The Scope of Disciplinary Rules and the Question of Evidentiary Standards’ (2011 16(1) International Journal o f Law and Education 27, 30-31. See also, Jon Yorke, Kathryn Lawson and Graham McMahon, ‘Can We Reliably Determine Intent in Cases of Plagiarism?’(2009) 5(2) International Journal fo r Educational Integrity 39, 43.

M ic h e l l e E v a n s

10

11

12 13 14 15 16 17 18

19 20 21 22 23 24 25 26 27

28 29

For example, Regulation 4, South Coast University Regulations cited and discussed in Wendy Sutherland-Smith, ‘Hiding in the Shadows: Risks and Dilemmas of Plagiarism in Student Academic Writing’ (Paper presented at the New Zealand Association for Research in Education Conference, Auckland, New Zealand, 29 November - 3 December 2003) 4-5. See, eg, the Murdoch University ‘Framework to Determine Degree of Academic Misconduct’, above n 2. For a discussion of the need to distinguish between plagiarism due to ‘ignorance, inexperience or socio-cultural dislocation’ and plagiarism due to ‘wrongfulness of impropriety’ see Lindsay, above n 9, 34. Lindsay argues (at 34) that plagiarism due to ‘ignorance, inexperience or socio-cultural dislocation’ should be dealt with as an educational issue, whereas plagiarism due to ‘wrongfulness of impropriety’ is an issue of academic misconduct. See also Virginia Goldblatt ‘The Perils of Plagiarism: Processes for Managing Academic Misconduct’ (Paper presented at the 18th Annual Conference of the Australian and New Zealand Education Law Association, Melbourne, 30 September-2 October 2009) 6 where she argues the need to distinguish between lower level plagiarism which can be addressed through education, and more serious plagiarism which can be dealt with as a disciplinary matter, 5-6. Specifically, Goldblatt (at 6) cautions against making ‘moral judgments rather than academic ones’ in less serious cases of plagiarism. Law Society o f Tasmania v Richardson [2003] TASSC 9. Re Humzy Hancock [2007] QSC 34. See Law Council of Australia, The Model Legal Profession Bill: Status o f Implementation . Legal Practice A ct 2008 (WA) ss 20, 22. Ibid s 22(1)(a). Ibid s 8(1)(a). Ibid s 8(1)(g)(ii). The Western Australian provisions are consistent with the Legal Profession Model Bill. Section 2.3.6(2) provides that a person may be admitted by the Supreme Court if they are ‘a fit and proper person to be admitted to the legal profession’. Further, s 2.3.4(1) provides that the Supreme Court of a state can take into account ‘suitability matters’ and ‘and other matter it considers relevant’ to determine if an applicant for admission is ‘a fit and proper person to be admitted to the legal profession’. The suitability matters are listed in s 1.2.6. Relevant suitability matters that may allow a Supreme Court to consider academic misconduct include: s 1.2.6(a) ‘whether the person is of good fame and character’; and s 1.2.6(g)(ii) ‘whether the person...has been the subject of disciplinary action, however expressed, relating to another profession or occupation that involved a finding of guilt’. Legal Practice A ct 2008 (WA) s 22(1)(b). Legal Profession A ct 2006 (NT) s 11(ga) which states as a suitability matter: ‘whether the person has been found to have engaged in academic dishonesty (including, for example, plagiarism)’. Legal Profession A ct 2004 (Vic) s 2.3.3(1)(ab). Ibid s 2.3.3(3). Legal Practice A ct 2008 (WA) s 575. Ibid s 575(2)(d). Legal Profession (Admission) Rules 2009 (WA), r 11(3)(a). For a copy of the form see Legal Practice Board , ‘Admission Forms’ . For a copy of the form see Legal Practice Board , ‘Admission Forms’, . For a discussion about whether or not to disclose in a Western Australian context, see also Libby Fulham, ‘To Disclose or Not to Disclose? That is the Question’ (2011) 38(10) B rief 26. Fulham, a Legal Officer for the Legal Practice Board of Western Australia, notes (at 27) that the Board will take failures to disclose very seriously, implying that if there is any doubt, disclosure should be made. Legal Profession Conduct Rules 2010 (WA), r 6(2). Ibid r 5.

P l a g i a r i s m a n d A c a d e m i c M i s c o n d u c t b y La w S t u d e n t s

117

30 31

32 33 34 35 36 37 38 39 40 41 42 43

44 45 46 47 48 49 50 51

52 53 54 55

118

See Ibid r 34(1) which provides that a legal ‘practitioner must not knowingly or recklessly mislead a court’. See Legal Profession A ct 2006 (ACT) ss 11, 20, 22, 26(2), 29, 30 and 31; Legal Profession A ct 2006 (NT) ss 11, 24, 25(2)(b), 30, 32, 35, 36; Legal Profession A ct 2007 (Qld) ss 9, 28, 21(1)(b), 31, 35, 39(2); Legal Profession A ct 2004 (NSW) ss 9, 22, 25, 31(2), 35(1), 36; Legal Profession A ct 2004 (Vic) ss 1.2.6, 2.3.3, 2.3.6(1), 2.3.10(1), 2.3.11; Legal Profession A ct 2007 (Tas) ss 9, 26, 31(6). As noted earlier in this paper, South Australia did not adopt the Legal Profession Model Bill. However relevant provisions of the Legal Practitioners A ct 1981 (SA) refer to the requirement that an applicant for admission must be of ‘good character’ (see s 15). The relevant admission forms, made under the Rules o f Court Relating to the Admission o f Practitioners 1999 (SA), namely Forms 1 and 2, are in the form of a statutory declaration. They require the applicant to disclose any information that would affect their ‘good fame and character’ including ‘academic dishonesty such as plagiarism’ and authorise the Board of Examiners to obtain information about the applicant from any institution in which the applicant has undertaken academic or practical training, including whether the applicant ‘engaged in any dishonest conduct including plagiarism ...’. Law Society o f Tasmania v Richardson [2003] TASSC 9. This case is also discussed by Wyburn, above n 6. Law Society o f Tasmania v Richardson [2003] TASSC 9 [16]. Ibid [40]. Ibid [17]. Ibid [27]. Ibid [96]. Re AJG [2004] QCA 88. Ibid 2. Ibid 2. Ibid 2-3. Ibid 3. Re Livieri [2006] QCA 152. For another discussion of this case see the following case note: Anita Jowitt, ‘The Impact of Plagiarism on Admission to the Bar: Re Livieri [2006] QCA 152’ (2007) 11(2) Journal o f South Pacific Law 213. Re Livieri [2006] QCA 152, 3. Ibid 3-4. Ibid 4. Ibid 5. Ibid 4. Ibid 5. Ibid 6. Re Humzy Hancock [2007] QSC 34. This case has been the subject of much discussion in education literature. See, eg, Wyburn, above n 6; J. Joy Cumming, ‘Where Courts and Academe Converge: Findings of Fact or Academic Judgment’ (2007) 12(1) Australia and New Zealand Journal o f Law and Education 97; Francesca Bartlett, ‘Student Misconduct and Admission to Legal Practice — New Judicial Approaches’ (2008) 34(2) Monash University Law Review, 309; Lillian Corbin and Justin Carter, ‘Is Plagiarism Indicative of Prospective Legal Practice?’ (2008) 17 (1 & 2) Legal Education Review 53. Corbin and Carter strongly disagreed with this decision, and advocated for a stricter approach to plagiarism whereby students would be ‘automatically’ guilty of plagiarism if they have used another’s work without attributing it. I disagree with such a strict approach which is onerous on students and could unfairly impact on their future careers. For example, utilising this approach, a student could be prevented from seeking admission for inadvertent plagiarism. Re Humzy Hancock [2007] QSC 34, 3. Ibid 3. Ibid 3. Ibid 2, 6.

M ic h e l l e E v a n s

56 57 58 59 60 61 62 63 64

65 66 67 68 69 70 71

72 73 74

Ibid 6. Ibid 7. Ibid 7. Ibid 9. Ibid 9. Ibid 9. Ibid 11. See, eg, Corbin and Carter, above n 51, 54. The case does not discuss whether the Law School educated its students about academic misconduct. However, it appears unlikely given Humzy-Hancock’s statement that he did not understand the Academic Misconduct Policy and that he did not realise that ‘collaboration’ could have serious consequences (at 2-3). In the Matter o f OG, a Lawyer [2007] VSC 520. For further discussion of this case see Wyburn, above n 6; Bartlett, above n 51. In the Matter o f OG, a Lawyer [2007] VSC 520, 18. Ibid 20. Ibid 26. Ibid 61. Ibid 61. Doug Atkinson and Sue Yeoh, ‘Student and Staff Perceptions of the Effectiveness of Plagiarism Detection Software’ (2008) 24(2) Australasian Journal o f Educational Technology 222, 230. I acknowledge that internet plagiarism is significant and probably more common than plagiarism from other sources, so to this extent plagiarism detection software may be useful. Also, the free availability of information on the internet may result in a perception amongst students that it is less serious: see Neil Selwyn, ‘“Not Necessarily a Bad Thing...”: A Study of Online Plagiarism Amongst Undergraduate Students’ (2008) 33(5) Assessment and Evaluation in Higher Education 465. Atkinson and Yeoh, ibid 233. Bretag and Mahmud, above n 6, 54. Typically, if an academic staff member suspects plagiarism they will first try to ascertain where the plagiarised content is from by conducting internet searches, and perusing books and journal articles to find the plagiarised content. This can take several hours, depending on the number of sources the student has plagiarised from. In the case of collusion, the academic staff member must search back through their papers to find the assignment that has similarities. In both cases, the staff member will then photocopy the assignments and mark up the plagiarised content, or in the case of collusion, the same or similar content. The students will then be called in separately for an interview with two staff members, usually the unit coordinator and the academic staff member who was the marker or the Head of School. The allegation of plagiarism or collusion will then be put to the student who will be given an opportunity to explain how they researched and wrote their assignment and how the plagiarism or similarities may have occurred. Depending on the explanation given by each student, it can be very difficult to ascertain whether the student acted dishonestly, or if the plagiarism, for example, was inadvertent. In the case of collusion, it can be very difficult to prove dishonesty. For example, if both students deny any wrongdoing, it can be difficult to determine whether they wrote the paper together, if one wrote the original paper and the other copied it (and if so, who did the copying) or whether purloining has occurred (that is, if one student has stolen the other’s work without their knowledge), and if so, whose work was purloined. In the case of ghost writing, a student could simply insist that the work is their own, and in the absence of the ghost writer coming forward, the allegation could not be proven. For a discussion of ‘intent’, the difficulties in proving it, the variances in procedures between different Universities and the need to better define the factors that academic staff can use to evaluate intent see, Yorke, Lawson and McMahon, above n 9. The unit coordinator or Head of School will then make an assessment as to whether the matter should be referred to the Dean or the University Disciplinary Committee, or whether a lesser penalty can be imposed after the interview stage without referring the matter on. This procedure will differ slightly from University to University depending on

P l a g i a r i s m a n d A c a d e m i c M i s c o n d u c t b y La w S t u d e n t s

119

relevant Regulations and Policies. However, the commonality is how time consuming the process is for the academic staff involved. 75 Fiona White, Caleb Owens and Melanie Nguyen, ‘Using a Constructive Feedback Approach to Effectively Reduce Student Plagiarism Among first-year Psychology Students’ (September 2008), The 43rdAnnual Australian Psychological Society Conference, Hobart, Australia, 127, 128.. 76 A further issue with plagiarism detection software is that the uploading of a student’s assignment may in itself constitute a copyright infringement by the software provider and also the University, depending on the subsequent use, dissemination and storage of the student’s work. For a detailed discussion of this issue see: Mary Wyburn and John MacPhail, ‘The Intersection of Copyright and Plagiarism and the Monitoring of Student Work by Educational Institutions’ (2005-2006) 10/11 Australian and New Zealand Journal o f Law and Education 73, 81-83; For a discussion of a United States case in which high school students unsuccessfully sued the company that owned ‘Turnitin’ for copyright infringement, see Juliet Hyatt and Pheh Hoon Lim, ‘Plagiarism and Copyright in Tertiary Education: Risks Posed by Plagiarism Detection Tools for both Students and Educational Institutions’ (2010) 15(1) International Journal o f Law and Education 7, 11-12. Hyatt and Lim also discuss the unequal bargaining power between students and universities which often require students to use databases such as Turnitin, or receive a fail grade. This raises the issue of duress (at 13). For a discussion of copyright issues and Turnitin in the United States, see Samuel J Horovitz, ‘Two Wrongs Don’t Negate a Copyright: Don’t Make Students Turnitin if You Won’t Give it Back’ (2008) 60 Florida Law Review 229, 242-267. 77 Crisp, above n 8, 8. 78 Keuskamp and Sliuzas, above n 6, 95. 79 Ibid 95. 80 Atkinson and Yeoh, above n 71, 238. 81 Leask, above n 6. 82 Ibid 183-184. 83 Leask, above n 6, 189. 84 Crisp, above n 8, 10. 85 Ibid 7. 86 Samuels and Bast, above n 6, 166. 87 Ibid 159-162. 88 Samuels and Bast, above n 6, 162-165. 89 Wyburn, above n 6, 53. 90 Ibid 53-54. 91 Carol Grantham, ‘Plagiarism: Taking the Lead’ (2009) 23(1) Access 5. 92 Ibid 6, 8. 93 This has been the case at the Murdoch University School of Law where the University has lowered the Australian Tertiary Admission Rank (‘ATAR’) (formerly ‘Tertiary Entrance Ranking’ or ‘TER’) for school leavers to 80. The ATAR is a tertiary entrance ranking that is calculated with reference to students’ Year 12 High School results and ranges between 0 and 99.95. It is used by Australian Universities to rank applicants for University courses. See Tertiary Institutions Service Centre (TISC Online) . 94 The research on how poor English skills and the lowering of admissions standards have an impact on the frequency of plagiarism is discussed in White, Owens and Nguyen, above n 75. 95 Samuels and Bast, above n 6, 166. 96 Helen Song-Turner, ‘Plagiarism: Academic Dishonesty or “Blind Spot” of Multicultural Education?’ (2008) 50(2) Australian Universities Review 39, 41. 97 Ibid 42-43. 98 Ibid 45. 99 Ibid 45. 100 Ibid 49.

120

M ic h e l l e E v a n s

101 102 103 104 105 106 107 108 109 110

Leask, above n 6, 186. Maxwell, Curtis, and Vardanaga, above n 7, 25. Ibid 30-31. Leask, above n 6, 192, 194 and 196. Ibid. White, Owens and Nguyen, above n 75, 131. Keuskamp and Sliuzas, above n 6, 97. See, eg, Samuels and Bast, above n 6, 162-163. Crisp, above n 8, 8. Steve McKillop and Ruth McKillup, ‘An Assessment Strategy that Pre-empts Plagiarism’ (2007) 3(2) International Journal fo r Educational Integrity 18. It should be noted that the field of study here was not law, but undergraduate human pathophysiology. 111 See, eg, Kirsty Williamson, Joy McGregor and Alyson Archibald, ‘Assisting Students to Avoid Plagiarism Part 2: The Inquiry Learning Approach’ (2010) 24(1) Access 21. 112 Samuels and Bast, above n 6, 163-164. 113 Goldblatt advocates the incorporation of teaching and assessment strategies to discourage plagiarism such as changing assignment topics from previous years and using problem based learning: Goldblatt, above n 11, 7.

P l a g i a r i s m a n d A c a d e m i c M i s c o n d u c t b y La w S t u d e n t s

121