To gain entry into certain professions, an applicant must often be considered a “fit and proper” person. In legal practice, one must be of “good fame and character”. Similarly, to practice as a health care practitioner, an applicant must be considered a “suitable person” to hold registration. The primary purpose of this is said to be the protection of the public.

Many in the legal profession would be familiar with a warning given to all first year law students. It goes something like this:

If you cheat, collude or plagiarise on your assignments or exams then, beyond what the university may or may not do to you, you may be disqualified from admission to practice.

Could one act of dishonesty ruin your “fit and proper” status for life? Thankfully, principles of fairness seem to come into play here, as they do in criminal sentencing. In South Australia, for example, a decision-maker “should temper justice with mercy” (R v Moyse (1988) 38 A Crim R 169).

When properly disclosed, an applicant may still apply to a professional body despite a prior finding of dishonest behaviour. See, for example, the recent case of Re Giles [2014] NTSC 30, where the applicant was declared “fit and proper” for candidly disclosing a prior incident of academic dishonesty. In Psychology Board of Australia v Registrant [2013] QCAT 627, the “insight, remorse and genuine understanding” of the applicant was considered, as to whether the practitioner truly understood “the error of his or her ways”.

Of course, not disclosing such dishonesty proves present dishonest intent, and often disqualifies the applicant practitioner from registration with the profession, should it be discovered.

Consider the case of Re Legal Profession Act 2004 (2007) 18 VR 164, where “OG” had his admission to practice law cancelled as a result of an earlier undisclosed instance of collusion coming to light. His fellow law student, “GL”, disclosed this collusion in his own application, however was refused admission based on a lack of frankness, not because of the collusion with OG.

What is important here is that, while OG and GL might both have been free to practice had they demonstrated full and frank disclosure on their applications, they might not have been admitted anyhow because of their collusive conduct. Meanwhile, had GL not admitted academic dishonesty on his own disclosure statement, there was little chance that their deception would be discovered — not exactly a case for “full and frank disclosure”. Indeed, deception of this kind is likely treated so harshly because it is so hard to uncover. This begs the question: is the system currently in place adequate to protect the public from such deceptions? If not, how many practicing professionals (of both law and medicine) have concealed their own instances of academic dishonesty to gain entry to their professions?

For health care practitioners, s 80(1)(a) of the Health Practitioner Regulation National Law (found in the Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld)) empowers National Health Boards to inquire into an applicant’s academic history with their institution. However, some reports by university staff members suggest that not all instances of academic dishonesty are recorded on a student’s transcript (and are thus not discoverable). Punishments are often secreted on confidential “academic integrity registers”, and plagiarism or collusion may be recorded as a general zero mark (as in OG and GL’s cases) without any entry being made on their permanent record. In Re Legal Profession Act 2004, OG and GL were actually dissuaded by their lecturer from appealing the decision to the University Board because such a course would be recorded on their records (this raises its own questions about the justness of such an internal appeals process).

If the rationale behind who is “fit and proper” is truly the protection of the public, then perhaps a stronger onus ought to be placed on tertiary education providers to disclose instances of academic dishonesty. Similarly, those who are found guilty of dishonesty, but show true contrition, ought to have justice against them tempered with mercy, lest one bad decision hang like an albatross around their neck, forever barring them entry. It is clear that something must be done, because the current system incentivises deception and punishes the rare applicant whose deception is uncovered through pure chance.

Health care practitioner regulation is discussed in the updated The Laws of Australia Subtitles 20.2 “Regulation of Health Care Professionals” and 27.2 “Health Practitioners”. Legal practitioners are discussed in 27.3 “Legal Practitioners”.

For more information about The Laws of Australia, click here.