1. ‘Best Practice’ use of TurnItIn in Law topics EHL Faculty Forum 10 November 2015 Tania Leiman Flinders Law School

5. LLAW2211 Torts 2 Semester 1, 2015 189 submissions to Turnitin approx 150 students x 1 assignment

6. LLAW1223 Torts 1 Semester 2, 2015 47 drafts submitted 140 students x 4 assignments

11. Educative / Preventative? Academic Standards? Academic Judgement? First year Low Stakes? Punitive? Dishonesty? Disciplinary Process? Final year High Stakes

12. Law degree Aware of implication? Double degree Previous degree Other study Unaware of implication?

13. Same institution Same definition of AI Clear & consistent policy & process Procedural Fairness Standard of proof Records managements Staff as ‘best practice’ role models ‘Best practice’ assessment design Different institutions Different definitions Unclear / inconsistent / informal Multiple markers Sessional assessors Resources and workload Or not?

15. Q And just before we leave the High Court, as an associate, how much of a role did you have in drafting judgements? AIt differed from chambers to chambers but McTiernan's [Sir Edward McTiernan] associates were expected to play a significant role. There are stories around that his associates used to write the judgements. That is an exaggeration but certainly there was no Judge who made more use of his associate in discussing judgements and so on, at that time than McTiernan. I didn't complain about that because it was good experience for me, but I have from time to time had a few judgements cited to me when I was on the Court and I was never able to say it at the time, but I would at least say “That’s a very pertinent passage” and I can remember agonising over the passage night after night with the judge so I made a contribution in that respect.

16. LexisNexis Australian Encyclopedia of Forms and Precedents 335.5 Letter of awareness Click here to access Microsoft® Word Document v008-335-005.doc Click here to access Microsoft® Word Document v008-335-005.doc [Current to April 2013] Letter of awareness [ This form of letter is one given where the parent company wishes to avoid liability and can get away with simply making statements of fact (excluding policies and intentions as to the future). This form can be used where the financier appreciates that no more than a moral obligation is being given, and either merely wishes to ensure that the parent company is aware of the extent of the obligations of the subsidiary or is not in a position to demand "harder" undertakings. ] TO: [ Creditor ] We have taken note of your intention to extend credits to [ borrower ]. The details of those credit arrangements are known to us and we will keep ourselves informed about them in the future. Yours faithfully, [ name of company ].......................................................... 1 1. 1. The documents should be executed in accordance with the constituent documents of the parent company.

17. Does it matter if the student didn’t mean to plagiarise? Should it matter?

18. Is this a breach of AI? ‘[There were] "some obvious similarities between [HH’s] assignment and that of [the other student]". HH attempted to explain the fact of similarities in this way. In the fortnight before the assignment was due, [HH] and the other student discussed the subject matter of the assignment, and the likely sources of materials. They "pooled" their research notes and they worked together at the library searching legal databases. But they also did some research work independently and [HH] was adamant that their writing was done independently. On those facts [HH] then conceded, and still concedes, that there was some collaboration. But …[HH] argued that what had occurred was "normal practice amongst law students" and that it was "not unusual... to discuss different interpretations and approaches of the requirements detailed in the assessment guides." Re Humzy - Hancock [2007] QSC 34 at 4

19. Is this breach of AI proven? In his evidence before me, [HH] said that the other student, who lived nearby, would often be at his house and use the applicant’s computer because [HH] had broadband internet access and the other student did not. [HH] says that in this way his assignment, or a draft of it, would have been easily accessible. He strongly denied that he had allowed the other student to copy it, or that he was aware that this had happened. Re Humzy - Hancock [2007] QSC 34 at12

20. Is this breach of AI proven? Would you report this to Confidential Register ? ‘…[HH] wrote: “A free trade agreement between Australia and the US will bring with it significant environmental impacts. According to Cebon the Australian Federal Government has commissioned two studies to assess the economic impact of the agreement, but unlike the US where environment reviews are legislated, it has not conducted any research into the potential environmental impact of the agreement.” At the end of that second sentence there was a footnote to the Cebon publication. The problem is that the first sentence also derives from the same work. Indeed it is a word for word reproduction. A reader would not realise that. So the attribution, by the footnote at the end of the second sentence, was inadequate. But the first sentence simply stated a general proposition which was developed in this essay. It was poor work for [HH] simply to copy it without due attribution.’ Re Humzy - Hancock [2007] QSC 34 at 17

21. What about this? ‘[JO’] answer to Problem 2 is almost a direct copy of [the lecturer’s] “discussion board post – Lecturer’s feedback problem 2”. It is difficult to understand why there would, in effect, be a model answer posted by the lecturer before the assignment was due (as seems to have occurred here) and easy to see how this would not be conducive to the development of a proper understanding of the nature of plagiarism or an understanding of what is required academically of a student submitting an assignment. Indeed it seems to have contributed to [JO’s]continuing erroneous idea that she would not have been committing plagiarism by using someone else’s work in the … assignment if she had completed her original intention of “paraphrasing the content into my own words”.’ In the matter of an application by Joy Onyeledo [2015] NTSC 60 (11 September 2015)In the matter of an application by Joy Onyeledo [2015] NTSC 60 (11 September 2015) at 12 footnote 13

22. What about this? ‘Did the Applicant intend to pass off the work of others as her own? [31] I do not think [JO] intended to pass off the work of others as her own. …most of her paper was copied directly … without any modification. Paragraphs were also copied directly from a number of other sources… There was little, if any, of [JO’s] own work in the assignment, save for the fact she assembled various sources into a single document. Nevertheless, [JO’s] assignment did contain references to the multiple sources she had directly copied from, albeit woefully inadequate ones. [32] I consider it more likely than not that [JO’s] academic misconduct is attributable to her poor grasp of essay writing and referencing skills and, as she deposed, to her running out of time and submitting an assignment that was essentially incomplete. It is unlikely that [JO] would have intended to pass off the work of others as her own while citing (albeit poorly and inadequately) the sources from which she was directly copying. In the matter of an application by Joy Onyeledo [2015] NTSC 60 (11 September 2015)

23. What about this? ‘On 3 June 1999, …lecturers …[LB] and Associate Professor Gino Dal Pont, wrote to the Head of the Law School, …, with allegations of academic misconduct on the part of eight students arising out of their assignments. …the lecturers advised that [R’s] answers and the answers of another student, … X, were "near identical". Students were permitted to use precedents for the purpose of completing the drafting sections of the assignment, but the lecturers did not believe that the similarities were explainable by the use of the same precedents. It was not expected that precedents could be found that would adequately satisfy what was required to be drafted by the students.’ R signed a ‘cover sheet that included (inter alia) disclaimers in terms that "this assignment, to the best of my knowledge, contains no material previously published or written by another person except where due reference is made in the text" and "I am aware that plagiarism is serious academic misconduct".’ X ‘had not submitted a cover sheet (and had not signed the disclaimer section)’. Law Society of Tasmania v Richardson [2003] TASSC 9 (18 March 2003) Law Society of Tasmania v Richardson [2003] TASSC 9 (18 March 2003) at [10]

24. When a person is sentenced for a criminal offence, courts take into account ‘character, antecedents, age, means and physical or mental condition’ Criminal Law (Sentencing) Act 1988 (SA) s.10 When determining how to respond to alleged breaches of academic integrity, should we take into account students’ prior learning history? age? disability? other academic pressures? work demands? family situation? capacity to access technology or advice? language skills?

25. What responsibility do we have? What responsibility should we have? legally | ethically | morally ‘While it is general practice to counsel students found guilty of any level of academic misconduct as to the requirements under the university's policy, there is no parallel requirement relating to counseling students on the effect an adverse finding might have on application for admission. Academics dealing with academic misconduct may indicate that the incident is disclosable, but there is no substantive requirement to counsel the students as to what steps he or she might take to begin the process of compiling material to offset the adverse finding, and legal academics, many of whom have never practiced, may not be in a position to provide such advice.’ Thomas (2013) at 94

26. Cases In the Matter of an Application for Admission as a Legal Practitioner [2004] SASC 426 In the matter of an Application by Joy Onyeledo [2015] NTSC 90 In the Matter of the Legal Practitioners Act, 1981 and Fadi Semaan Legal Practitioner Disciplinary Tribunal Action No.23 of 2013In the Matter of the Legal Practitioners Act, 1981 and Fadi Semaan In the Matter of OG, a lawyer [2007] VSC 520 Jarvis and Legal Practice Board [2012] WASAT 28 Law Society of Tasmania v Richardson [2003] TASSC 9 Legal Services Commissioner v Keough ( Legal Practice) [2010] VCAT 108 Re AJG [2004] QCA 88 Re: Humzy Hancock [2007] QSC 034 Re Liveri [2006] QCA 152

27. References Lillian Corbin and Justin Carter, ‘Is Plagiarism Indicative of Prospective Legal Practice?’ (2007) 17(1 & 2) Legal Education Review 53. J. Joy Cumming, ‘Where Courts and Academe Converge: Findings of Fact or Academic Judgement’ (2007) 12(1) Australia & New Zealand Journal of Law & Education 97. Michelle Evans, ‘Plagiarism and Academic Misconduct by Law Students: The Importance of Prevention over Detection (2012) 17 (2) International Journal of Law & Education 99. 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 of Law & Education 7. Patty Kamvounias and Sally Varnham, ‘Legal Challenges to University Decisions Affecting Students in Australian Courts and Tribunals’ (2010) 34 Melbourne University Law Review 140. Bruce Lindsay, ‘Student Plagiarism in Universities: the Scope of Disciplinary Rules and the Question of Evidentiary Standards’ (2011) 16(1) International Journal of Law & Education 27. Debra Mullins, ‘Warts and all: The impact of candour in assessing character for admission to the legal profession’ (Paper presented at the Third International Legal Ethics Conference, Gold Coast, Queensland, 14 July 2008). Anita Stuhmcke, ‘Teaching Plagiarism: Law Students Really Are That Special’ (2011) 1 Journal of the Australasian Law Teachers Association 137. Mark Thomas, ‘Admission as a Lawyer: The Fearful Spectre of Academic Misconduct’ (2013) 13(1) QUT Law Review 73. Mary Wyburn, ‘Disclosure of Prior Students Academic Misconduct in Admission to Legal practice: Lessons for Universities and the Courts’(2008) 8(2) Queensland University of Technology Law and Justice Journal 314.