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Australasian Human Research Ethics Consultancy Services Pty Ltd (AHRECS)

Complainant anonymity in misconduct proceedings depends on the forum0

 

Prof. Colin Thomson AM, Senior Consultant, AHRECS

This news item, while identifying the fact that the decision relates to court proceedings and not to university processes, leaves out some informative facts.

Two members of the La Trobe academic staff lodged complaints about bullying by Professor Keyzer, whom the university suspended.  In turn, Professor Keyzer commenced proceedings against the university in the Federal Court to challenge the way it had handled the complaint. The complainants were not parties in these proceedings.  However, they sought to intervene in the case (Keyzer v La Trobe University [2019] FCA 646) to request that the court order that their names not be published.  They were represented at the hearing but both the university and Professor Keyzer were not.

The court needed to decide whether to allow the complainants to intervene in the case and, if they were allowed, whether there was a case to suppress their names in the court hearing and record.  The court allowed them to intervene but did not order suppression of their names.

The question of suppression of the complainants’ names raised, and was ultimately decided on, the fundamental difference between proceedings in institutional investigations and those in superior courts.  That difference is that publicity of court proceedings is seen to be central to the administration of justice in Australia, and characteristic of the English common law tradition that informs Australian court proceedings.

In concluding his comprehensive judgement, that contains a thorough account of the open justice principle at stake and the exceptions that have been permitted, Anastassiou J said:

I echo the sympathy expressed by Mahoney JA for the “great pain” that is often felt by those subjected to publicity surrounding court proceedings. However, the power conferred by s 37AF is constrained by the grounds under s 37AG and by the overlay of priority to be given to the public interest served by open justice pursuant to s 37AE. In my view, s 37AG(1)(a) makes clear that the public interest served by open justice may only be qualified where it is necessary in the strictest sense to prevent prejudice to the proper administration of justice. The legitimate personal interest of the interveners in maintaining their privacy in connection with the complaints process is not sufficient to conclude that the protection of their interests is necessary to prevent prejudice to the administration of justice.

The following is the text of sections referred to:

37AE  Safeguarding public interest in open justice

In deciding whether to make a suppression order or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

37AF  Power to make orders

(1)  The Court may, by making a suppression order or non-publication order, on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:

    • information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or

(b) information that relates to a proceeding before the Court and is:

(i)   information that comprises evidence or information about evidence; or

(ii)   information obtained by the process of discovery; or

(iii)   information produced under a subpoena; or

(iv)   information lodged with or filed in the Court.

(2)  The Court may make such orders as it thinks appropriate to give effect to an order under subsection (1).

37AG  Grounds for making an order

(1)  The Court may make a suppression order or non-publication order, on one or more of the following grounds:

(a)  the order is necessary to prevent prejudice to the proper administration of justice;

(b)  the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;

(c)  the order is necessary to protect the safety of any person;

(d)  the order is necessary to avoid causing undue distress or embarrassment to  a party  to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).

(2)  A suppression order or non-publication order must specify the ground or grounds on which the order is made.

Concluding observation

Within the scope of a university’s own investigation or disciplinary procedures, the assurance of confidentiality in internal procedures and policies can be relied upon. However, when proceedings in relation to staff misconduct are brought in an Australian superior court, such as the Federal Court or a State Supreme Court, the priorities among principles changes. In those courts, the principle of preserving the “proper administration of justice” is fundamental and has priority over the principles that governed the conduct of institutional proceedings. In such courts, the grounds on which exceptions can be made to that principle, such as orders that suppress the name of a person, as this case illustrates, are few.

This post may be cited as:
Thomson, C. (24  May 2019) Complainant anonymity in misconduct proceedings depends on the forum. Research Ethics Monthly. Retrieved from: https://ahrecs.com/research-integrity/complainant-anonymity-in-misconduct-proceedings-depends-on-the-forum

Requesting your input0

 

We’re preparing to work on a new version of the subscribers’ area, so we’d appreciate hearing your thoughts and ideas.

Some of you have told us you’d like to subscribe, but your institution’s accounting rules don’t allow for open ended online subscriptions.  Some subscribers have told us that it would be helpful if the listed items were better organised.

We agree, but the Patreon platform doesn’t provide the kind of flexibility to make these kinds of sensible changes.

So, we’re exploring the cost and logistics of creating a subscribers’ area we control. While we work out its details, the key changes will be:

  1. Institutions that wish to access the contents in the subscribers’ area will be sent a tax invoice for a 12-month subscription which would be paid by EFT or PayPal.
  2. The area will be structured in two sections (Human Research Ethics and Research Integrity) each with five subsections:
    1. Commentaries
    2. Professional development material
    3. Images
    4. Audio files
    5. Video files
  3. There will be tools to link to related items, profile items and search the library.

Subscribers to the existing Patreon service can move to the new service at the same level for the remainder of whatever time they have remaining, at no extra cost.

Because we suspect some users of the Patreon service may prefer to stay there, we plan to continue posting items to both Patreon and the new service.

Is the new service something you’d recommend your institution subscribe to?  Before we spend the money to build it, we’re hoping to hear at least 15 institutions are interested in-principle.  Please send an email to patron@ahrecs.com.

Travelling Consultants and Professional Development Roadshows0

 

Prof. Mark Israel plans to be in CANBERRA (2-3 April), SYDNEY (8-10 May), UK and Belgium (27 May-8 June), MELBOURNE (13 June) and Perth (22-26 April, 1-5 July) should any universities, health services or research organisations wish to meet to discuss their research ethics or research integrity needs with an AHRECS Senior Consultant.

Prof. Colin Thomson plans to be in CANBERRA (8-10 April), BRISBANE (30 April – 1 May).

Mark and Colin are also available to run professional development workshops for HRECs, academic or professional staff, in research ethics and research integrity including the changes to the National Statement and the new Australian Code.

AHRECS has other consultants based in those cities or who travel through regularly should these dates not be convenient. Of course, we also remain available by videoconference at other times.

Send an email to enquiries@ahrecs.com if you would like any further information.

Interest in ‘self-plagiarism’1

 

Mark Israel

Mark Israel’s article in Research Ethics Monthly on ‘Self-plagiarism?’ has been receiving a little interest outside Australia and New Zealand. It was reposted by the LSE Impact of Social Sciences Blog, and listed by Retraction Watch. Given that it offered guidance on the ethics of republishing in another language, it was nice to hear that the five pieces of advice had been translated into Mandarin by Zheng-Rong Gan for use at National Cheng Kung University in Taiwan (reproduced below with her permission).

  • Assess whether your reasons are ethically defensible; 評估這麼做的理由在倫理上是否站得住腳
  • Seek the agreement of those involved in your first publication – co-authors, editors and publishers; in some cases, publishers will want a specific form of acknowledgement; 尋求出現在第一次出版相關文章/文字者的同意,其中可能包含共同作者、編輯、出版商(有時會要求有特定的認可方式)
  • Seek the agreement of those involved in the new publication that will be reproducing material – any co-authors, editors and publishers; 尋求此次新出版相關文章/文字者的同意,其中可能包含共同作者、編輯、出版商等
  • Clearly acknowledge in the new publication that you are drawing on the earlier publication and do so with the agreement of the various parties, 在新出版品中清楚註記出處,且註記方式能被原出版者及新出版者所認可
  • Where it would be misleading not to do so, also note the relationship between publications in your CV and any job or grant applications在您的學術履歷、研究經費或升等之類文件,務必清楚註記這些前後出版品的關係,以避免被誤解或重複計算發表篇數等

There were a few responses to the LSE Blog. One respondent pointed out the concept of ‘self-plagiarism’ is self-contradictory as one cannot plagiarise one’s own work. Mark Israel agrees with this respondent, notes that the term is in wide use and recognises that its use should be challenged. The same respondent pointed to the Ingelfinger Rule which has been adopted by journals who refuse to publish articles that have already been published elsewhere. The Rule has been modified and challenged over time, most recently in relation to the use of preprint servers (see Resnik, 2018).

Contributor
Mark Israel, Senior Consultant AHRECS | Profile | mark.israel@ahrecs.com

This post may be cited as:
Israel, M. (27 March 2019) Interest in ‘self-plagiarism’. Research Ethics Monthly. Retrieved from: https://ahrecs.com/research-integrity/interest-in-self-plagiarism

 

 

 

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