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Review of the Australian Code for the Responsible Conduct of Research Submission

ID: 
10
Personal Details
This submission reflects the views of
Organisation Name: 
Monash University
Specific comments
Specific comments: 
Guide Section 3

3.2 Extent

“Some decision will need to be guided by requirements in employment agreements” needs to alter so all decisions have regard to both employment and industrial agreements.  It is not permissible to breach either under this Guide.  Breach of an industrial agreement is unlawful under the Fair Work Act, punishable by a fine and other coercive orders.  Breach of an employment agreement is a breach of contract and amenable to court ordered contractual remedies.

The quote above misstates which document is the guide.  This process cannot have priority over the process for handling allegations of misconduct in an enterprise agreement.  As such the ability for any institution to implement a process such as provided for in the Guide is always subject to its enterprise agreement obligation. 

The Guide suggests that this process is a precursor to the disciplinary process.  This cannot be.  If it was then an employee would be subject to a Guide preliminary investigation, a Guide formal investigation, and then disciplinary investigation.  This does not meet any definition of fairness, particularly where the Guide overtly states that its process cause “damaging effects on those involved”.

The role of the complainant in this process (where the complainant must be told of every decision and reasons for the decision throughout the process) fails to recognise that disciplinary investigations and processes are private processes, concerning the person under investigation and the employer.

Guide Section 2

Confidentiality (2.1, 4.2(vi))

The Guide requires the matter to be dealt with confidentially, then requires a range of disclosures. This is inconsistent.  Instead references to confidentiality should be replaced with respect for privacy, which is sufficient to provide the assurance required about disclosure on the basis of need to know.

Guide Section 3

Plagiarism (3.1(ii))

Plagiarism is not a universally understood concept and is not defined. It needs definition that at a minimum includes that it involves the use of another’s work without acknowledgment of the source.  This is currently absent, but included the description of duplicate publication.

Guide Section 3

Plagiarism (3.1(ii))

Plagiarism is not a universally understood concept and is not defined. It needs definition that at a minimum includes that it involves the use of another’s work without acknowledgment of the source.  This is currently absent, but included the description of duplicate publication.

Guide Section 3

3.2 Extent

There is confusion about the circumstances in which an event may take place, the reason/s it may have occurred, and surrounding mitigating circumstances.  It seems the difference between these concepts is not understood. 

There is no reference to conduct that is reckless, as opposed to intentional or accidental.

Guide Section 3

3.2 Table

Is “Distortion of visual presentation of data” a minor breach?

The examples of “Breaches related to supervision” provide no illustration of what is adequate guidance/supervision, instead focussing on inappropriate methods.

Guide Section 4

4.2 Principles of procedural fairness

The principles of procedural fairness do not and should not apply to “all stages of investigating” in the manner suggested in the Guide.  For example, the Guide places the complainant in an inappropriate position of being informed of every step of the process, including decisions and reasons for decisions.

The hearing rule is not “the right to be heard”,  but the obligation to provide an opportunity to respond. 

The statement “the damaging effects on those involved” is an inappropriate statement in an investigation process document.  It could be better expressed as “to mitigate the impact on those involved”.  If the process will automatically damage people it needs to be revised.

Guide Section 4

4.2 Table

“Respondent informed of the outcome of the preliminary assessment” will not apply in all cases, and will depend on how the preliminary assessment is managed.

Guide Section 4

4.3 Institutional roles (also 7.2)

A process guide should not mandate the provision of an indemnity to personnel involved in the process. It’s a matter for the institution how it implements the process.

Guide Section 5

5.3 Managing complaints

Retaliatory action is not permitted in any circumstances, yet later it is permitted to take action against a complainant where the complaint is made vexatiously.  The statement about retaliatory action needs to be qualified, so only retaliatory action with a particular cause is not permitted.

Guide Section 5

5.4 Communicating with the complainant

The complainant is to be informed of “any decisions”.  This is inappropriate.  There are few decisions that the complainant will be informed of.  The complainant is not in the role of prosecutor, and these seems to be misunderstood throughout the Guide.

Guide Section 6

6.3 Outcomes from the preliminary assessment

Where the respondent contests a breach “an investigation is required”.  This ignores the outcome of the preliminary assessment.

Resignation is not an end point and the institution has to address the complaint including by corrective action – how does the Guide propose this be achieved within the constraints of the law, including privacy law, obligations to accord procedural fairness, and the limits of authority over former employees etc?

Guide Section 7

7.3 Conduct of the investigation

The respondent is to have access to “all the evidence” is too prescriptive and not what natural justice would require in all cases.

It moves from a Guide to be prescriptive on the topics such as the use and role of legal counsel and the support person.

Guide Section 7

7.4.3 Evidence to support a breach of the Code

The institution is “responsible for ensuring the public record is corrected”. This is not possible as the institution is the not publisher of journals. The institution can only request corrections, and can’t enforce them.  So it can’t “ensure” correction.

Guide Section 7

7.5 Communicating the findings

“The matter may also need to be referred to the new employing institution”.  What is to happen next if such a referral is made.  What is the authority and role of the new employing institution regarding alleged RM in circumstances where they had no role.  Any expectation here needs to be clarified and to be lawful.  Keep in mind Monash could be the new employing institution receiving such a referral.  What is it meant to do next, according to the Guide’s authors?

Definitions in Code

Conflict of interest is defined in points 1 and 2 without any reference to the influence being “improper”.  Influences that could fall within 1 and 2 occur all the time and are normal, and in many cases entirely legitimate. The definition is so broad as to be unhelpful to determine an impermissible conflict of interest.

Likewise a perception of conflict of interest is not a problem if it is unreasonable.  It is only a reasonable perception of a conflict of interest that is a concern.

Investigation is defined setting an inappropriately rigid process.

Guide Section 7

7.4 Outcomes from the investigation

This section recommends that a copy of the draft report should be provided to the respondent for comment on factual inaccuracies.  Noted that this is a 'should', however, providing the respondent with a draft copy provides the respondent to dispute the contents of the report which will likely extend beyond the review for factual accuracies, and likely move into the presentation of those facts and subsequent interpretation.  The guidelines already provide opportunity to for the respondent to comment on the preliminary assessment and provides form mechanism to request a review of the outcome.  The existing provisions seem adequate without the need to open up the drafting of the outcome to debate.

Guide Section 7

7.6 Mechanisms for review of an investigation

 

Currently ARIC reviews a institutes processes for responding to allegations of breaches of the Code to establish whether the institutes processes are consistent with those outlined in Part B of the code.

 

With the removal of any procedural matters within the Code and any process being described in a ‘better practice guide’, will clarity of ARICS future role be forthcoming.

Specific consultation questions
Question 1: Do you like the new approach to the Code, namely the principles-based document being supported by several guides that provide advice on implementation?: 
Yes, Monash University supports the principle based approach with supporting guides providing advice. It is still unclear whether funding agreements or Funder's policies will require and institute to demonstrate that their process are equal to or better than the guides or whether these are truly guides.
Question 2:The draft Code is intended to be used by all research disciplines. Do the principles adequately capture the expectations for responsible research across all research disciplines?: 
Yes we believe the draft Code adequately covers principles relevant to all research disciplines.
Question 3: The draft Guide refers to breaches of the Code rather than providing a definition of research misconduct, and states that institutions can decide whether or not to use the term research misconduct in their own processes.: 
We support the use of breaches rather than research misconduct. Misconduct has negative connotations which are not always warranted. The revised code will give institutes the flexibility to consider all complaints and provide a determination based on the seriousness without arguing about the technicalities of defining what misconduct and serious misconduct is. We also welcome the opportunity to decouple breaches of the code from Enterprise Agreement disciplinary investigations for minor breaches while being able to escalate serious matters more quickly. The anticipated outcome is the matters relating to minor breaches will be more timely. Issues may arise with the varying interpretation of the border between serious and minor breaches which may cause issues when conducting joint assessments or should an institute determine something as minor which a Funder later believes should have been considered serious and therefore subject to notification under Misconduct Policies. The determination of what is a minor breach will have a dramatic impact in what deviations from ethics protocols need to be assessed via the DO/AO versus the autonomy of an ethics committee to review all incidents. It is likely that there will be a dramatic variation between institutes in relation to reporting ethics breaches.
Question 4: Do you think the process described for investigating and managing potential breaches of the Code is clearly described and practical?: 
The process described is a welcomed improvement, practical and Monash University will likely adopt this. However, does the NHMRC, ARC, and therefore ARIC, have an expectation that institutes will adopt the better practice guide and what would happen in the instance that an institute chooses to deviate, in part or whole, from the guide.
Question 5: The Code Review Committee and working group are considering what additional resources should be developed to support implementation of the Code and Guide.: 
No. The level of detail included in most case studies means they are of limited benefit. If the NHMRC have available resource, consideration could be given to developing uniform online national training for the research community.
Question 6: Are the mechanisms for review of an investigation clearly and correctly described in Section 7.6 of the Guide? If not, where are the inaccuracies?: 
Yes. The options, ARIC or the courts, are the available options.
Question 7: Please comment on which three topics you would nominate as being the highest priority and why.: 
The areas that most frequently result in issues are authorship, plagiarism and data management. Authorship, being one of the main measures of a researchers performance, is critical to all researchers and particularly early career researchers and students. Both groups are often unaware of expectations and therefore vulnerable. Having clear guidance setting expectations early on is critical. With the increased globalization of research and the pressure to publish more material around the area of plagiarism and self plagiarism would be beneficial. A very clear definition would be useful. It is an area continually needing attention to ensure all involved have a clear understanding of expectations. Data management is always evolving. The changing nature of data and the push to store and share data with researchers around the globe requires substantial planning prior to commencing research. Guidelines identifying the numerous considerations that must be made upfront such as, the nature of the data to be collected and stored, security, sharing and ownership arrangements during and after the project, and ethical implications to name a few, would be very useful for researchers and research administrators and support staff.
General comments
Comments: 

Monash University would like to thank the NHMRC, the ARC, Universities Australia, the Code Review Committee and the Better Practice Guides Working Group for their effort.  We consider the results to be a marked improvement on the previous draft review.  The principle based code and the better practice guideline will give institutes better flexibility to address breaches of the Code and blend with existing enterprise agreements to manage staff matters.  We look forward to the development of further Better Practice Guides.

We would also like to thank those involved adopting the feedback provided in response to the earlier draft Code.  We believe the result will be an improved Code that will benefit all stakeholders. 

Page reviewed: 17 September, 2018