Introductory Info
Date introduced: 4 December 2019
House: House of Representatives
Portfolio: Education
Commencement: The day after the Act receives Royal Assent.
Purpose of
the Bill
The Tertiary
Education Quality and Standards Agency Amendment (Prohibiting Academic Cheating
Services) Bill 2019 (the Bill) proposes to amend the Tertiary Education
Quality and Standards Agency Act 2011 (the TEQSA Act) to:
- make
providing and advertising academic cheating services subject to offences and
civil penalty provisions under the TEQSA Act and
- add
preventing and minimising the use and promotion of academic cheating services
to the responsibilities of Australia’s higher education regulator, the Tertiary Education Quality and Standards
Agency (TEQSA).[1]
These changes aim to give effect to the Australian
Government’s response to the Higher
Education Standards Panel's (HESP) recommendations in relation to deterring
academic cheating services.[2]
Background
The rise of academic
cheating services
Promoting academic integrity, and addressing violations, is
a core feature of academic practice. While practices differ between disciplines
and institutions, at its core academic integrity requires scholars at all
levels, including undergraduate and postgraduate students, to honestly
acknowledge the contributions of others to their work.[3]
Although historically, academic integrity violations among
students have largely been understood in terms of copying from one another and published
work, commercial cheating services appear to have become more common in recent
years.[4]
The issue of commercial cheating services (often referred
to as ‘contract cheating’) came to the attention of the Australian Government
in November 2014 in the wake of media reports about widespread use by students
of the commercial cheating site ‘MyMaster’.[5]
The Minister for Education and Training referred the matter to TEQSA for
investigation.[6]
In March 2015, TEQSA released its response, the Report
On Student Academic Integrity and Allegations Of Contract Cheating By University
Students.[7]
The seventeen higher education providers identified as being implicated in the
MyMaster incident provided responses to TEQSA, which, it stated, complied with
the standards against which it regulated higher education providers at the
time.[8]
This finding raised the question of whether the Government’s approach to
regulating higher education was sufficient in respect to this issue, and in June
2015 the Minister requested the HESP, the independent expert advice body under
the TEQSA Act, to advise on options to deter commercial cheating.[9]
In March 2017, the HESP delivered its advice, including
three recommendations:
- ‘The
Government consider advocating or requiring higher education providers to adopt
a template or standardised statement of personal commitment to academic
integrity, which all students would be required to sign upon entering
Australian higher education.’
- ‘The
Government consider introducing legislation making it an offence for any person
to provide or advertise cheating services, modelled on section 292E of New
Zealand’s Education Act 1989. This would need to be done in cooperation
with states and territories to minimise any constitutional risks.’
- ‘...
the Government, in cooperation with the states and territories, consider
appointing the Tertiary Education Quality and Standards Agency to act as a
single national regulator with responsibility for oversight of the new cheating
provisions.’[10]
The 2018–19 Budget provided additional funding for TEQSA
to ‘crack down on contract cheating’.[11]
The HESP advice was published for comment by the higher
education sector in December 2018. The Australian Government’s response,
released at the same time, accepted the three HESP recommendations.[12]
Prevalence
of academic cheating
Commercial cheating services are part of a broader range
of academic integrity violations or ‘cheating behaviours’. Depending on how
‘cheating’ is defined, studies cite figures of up to 81 per cent of students
self-reporting as having engaged in some form of questionable behaviour, such
as copying from a classmate.[13]
In Australia, a study published in April 2018 found students engage in a range
of ‘outsourcing behaviours’, with different prevalence rates.[14]
For example, 27 per cent had provided another with a completed assignment, while
0.2 per cent had somebody else take an exam for them (in 18 per cent of these
cases students used a commercial service).[15]
Generally, the percentage of students who report using
commercial cheating services has been found to be relatively low, at around 3.5
to 7.9 per cent.[16]
However, there is some evidence that use is increasing. A 2018 systematic
review of the international literature on commercial cheating services found
3.52 per cent of students reported engaging in some form of commercial contract
cheating.[17]
When the scope of studies being analysed was confined to 2014 onwards, the
overall prevalence rate increased to 15.7 per cent.[18]
For university teaching staff, even the relatively low
proportion of students using commercial cheating services results in seeing
contract cheating regularly. An Australian study published in 2018 found 68 per
cent of surveyed staff suspected some of their students had outsourced
assignments.[19]
The literature also shows some students are more likely to
engage in cheating behaviours than others, with likelihood of cheating being
influenced by:
- gender—male
students self-report more cheating
- age—younger
students self-report more cheating
- discipline
of study—cheating appears to be more prevalent in business and engineering than
other disciplines
- learning
orientation—students who are more goal- than learning-oriented appear to cheat
more
- linguistic
background—English is an Additional Language (EAL) students self-report higher
rates of cheating, especially contract cheating and
- use
of technology—some studies associate increased internet use with cheating.[20]
Current
arrangements for addressing academic cheating in Australia
Although some recent analysis suggests that students and
services engaging in contract cheating could be committing existing offences
including fraud, forgery and conspiracy to defraud, there is currently no
state, territory, or Commonwealth legislation specifically addressing academic
cheating in Australia.[21]
More broadly, under the Higher Education
Standards Framework (Threshold Standards) 2015, made under subsection 58(1)
of the TEQSA Act, higher education providers are subject to a number of
requirements in relation to academic integrity, as a condition of registration.
Most notably, section 5.2 requires:
1. There
are policies that promote and uphold the academic and research integrity of
courses and units of study, research and research training activities, and
institutional policies and procedures address misconduct and allegations of
misconduct.
2. Preventative
action is taken to mitigate foreseeable risks to academic and research
integrity including misrepresentation, fabrication, cheating, plagiarism and
misuse of intellectual property, and to prevent recurrences of breaches.
3. Students
are provided with guidance on what constitutes academic or research misconduct
and the development of good practices in maintaining academic and research
integrity.
4. Academic
and research integrity and accountability for academic and research integrity
are maintained in arrangements with any other party involved in the provision
of higher education, including placements, collaborative research, research
training and joint award of qualifications.
In practice, this means that under current arrangements,
addressing academic cheating is dealt with at the demand side by higher
education institutions themselves, with no measures in place to deter the
supply of academic cheating services. TEQSA has found ‘considerable effort has
been spent by higher education providers in the last decade to promote academic
integrity among students and staff’.[22]
Initiatives include innovative assessment design, the use of text matching
software, training and professional development for staff, and institution-wide
continuous quality assurance and improvement.[23]
A study of Australian universities found by far the most
common response of staff who suspected their students had outsourced
assignments was referring the matter to their institution’s Academic Integrity
staff (56 per cent), while eight per cent ignored the issue, and the remainder
acted themselves to address it.[24]
Staff reported that penalties in proved cases of outsourced assignments range
from warnings (37 per cent), through zero marks (27 per cent) to exclusion (two per
cent).[25]
Since 2015, these approaches have increasingly been
supported by analysis and advice from TEQSA specifically addressing academic
cheating as part of its overall role as the provider of information, training,
and advice on improving the quality of higher education in Australia.[26]
Multi-faceted approaches are supported by expert research
as well as TEQSA advice, which emphasises that to reduce the likelihood of
academic cheating, universities should focus on the combination of teaching and
learning relationships between students and staff, student support,
particularly for international students, and students who speak a language
other than English at home, assessment approaches, and consistent application
of processes of breach detection, reporting, substantiation, penalisation and
communication.[27]
The role for government, therefore, is not in supplanting these efforts, but
providing a mechanism to deal with the supply of cheating services which
undermine the work of higher education providers on academic integrity by
targeting students with advertisements for their services.
The role of
legislation
Although there is widespread support among key
stakeholders for legislation to address academic cheating (discussed later in
this Bills Digest), there is some debate in the research literature about how
effective existing legislation elsewhere in the world is in addressing this
issue.
The HESP advice, on which the Bill is partly based, states
that when New Zealand’s Education Act 1989 was amended to include section
292E, which makes it an offence to provide or advertise cheating services,
‘there was an immediate deterrent impact without any actual convictions’.[28]
Yet, analysis of the single case of the New Zealand law being deployed so far
(in 2014) suggested the maximum penalty of NZ$10,000 is not a sufficient deterrent:
During the aforementioned case it was revealed that the
defendant’s company, Assignments4U, had received over 1.1million NZD in
payments over 5 years. Unless the penalty is sufficiently proportionate, it
will not be effective; a small fine may simply be seen as a running cost for a
large company. [29]
Comparative analysis in the United States (US), where
contract cheating legislation at state level is well-established, with many
states passing laws in the 1970s, also provides reason to be cautious about
possible deterrence.[30]
A recent survey of US laws found 17 states in the US impose a legal ban on
contract cheating services.[31]
By comparing contract cheating service provision by locality, this study concluded
the bans were not effective:
... some contractors operate in plain sight in localities where
contract cheating services are prohibited. The location field [on Twitter,
where the study was conducted] is optional and it is easy to select a location
where contract cheating is not prohibited which minimises the probability of
getting in trouble. However, three quarters of contractors claimed to be
located in states where it was against the law. Contractors also made offers to
a customer located in a state where these services are prohibited.[32]
Additionally, all jurisdictions face the resource-intensive
challenge of detecting academic cheating and enforcing penalties, as well as
the capacity for operators to evade such efforts by basing themselves in
jurisdictions where providing such services is not an offence.[33]
Ultimately, as academic integrity expert, Professor Tracey
Bretag has observed, legislation is ‘not a solution in and of itself’, but
‘just one thing we can do ... a step in the right direction’, in combination with
higher education provider actions, because ‘one of the most constructive
factors in combating cheating is when there are good relationships between
academic staff and students’.[34]
Committee
consideration
Senate Selection of Bills
Committee
At its meeting of 5 February 2020, the Senate Selection of
Bills Committee recommended that the Bill not be referred to a committee for
inquiry and report.[35]
Senate
Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills has
considered the Bill and requested the Minister’s advice as to:
- why
it is considered necessary and appropriate for the Minister to have the power
to exempt online search engine providers, via legislative instrument, from
applications for an injunction that would require them to take steps to disable
access to an online location that provides, or facilitates the provision of,
academic cheating services or advertisement of those services, and whether it
would be appropriate to amend the Bill to provide at least high level guidance
as to when such exemptions can be granted and
- why
a defendant would bear an evidential burden in relation to exemptions to the
proposed offence of disclosing academic cheating services information, where
common law would ordinarily require the prosecution to prove all elements of an
offence.[36]
Positions of
non-government parties/independents and major interest groups
This section draws on views put during the multi-phase
consultation process conducted as part of the development of the Bill, as well
as more recent comments on the Bill itself.
Consultation commenced with 29 submissions responding to
the HESP advice.[37]
Overall, these submissions supported the development of legislation to make
providing or advertising contract cheating services an offence.[38]
The Tertiary
Education Quality and Standards Agency Amendment (Prohibiting Academic Cheating
Services) Bill 2019 (the draft Bill) was then released, and 46 submissions
responding to it were received.[39]
While stakeholders generally continued to support a legislative approach to the
issue at this stage, debates emerged about the scope of the draft Bill, as
outlined below.
At the time of writing, no non-government
parties/independents have commented on the current Bill, but some higher
education interest groups have responded positively.
Non-government
parties/independents
Tanya Plibersek, Shadow Minister for Education and
Training, has been quoted as saying:
Any measures to reduce
cheating are very important. It’s important to our international reputation,
it’s important for students but truly this smells like distraction.[40]
In a submission to the consultation on the draft Bill,
Senator Mehreen Faruqi, the Australian Greens Spokesperson for Education, stated:
It is vital we do what we can to support education and
training providers in their work to ensure academic integrity. While
legislation is an important step in addressing large-scale, commercial contract
cheating, we must ensure that it does not have adverse consequences for
students, academic communities, or education and training providers’ ability to
promote and regulate academic integrity in their institutions.[41]
The submission went on to express concern about the
offences in the draft Bill applying beyond commercial cheating services.[42]
This issue has been addressed to some extent in the Bill, which
confines proposed criminal offence provisions to advertising or providing a
cheating service for commercial purposes, but contains civil penalty provisions
that would apply to advertising or providing a cheating service for
non-commercial purposes, as outlined in the issues and provisions section of
this Bills Digest. This change adopts the approach recommended by the Group of
Eight in their
submission on the exposure draft of this Bill.[43]
Major
interest groups
In response to the draft Bill, Universities Australia
observed:
Proposed section 114A(3)(b) of the Bill which prohibits the
providing of ‘any part of a piece of work or assignment that the student is
required to complete.’ UA believes this definition is too broad and will result
in ambiguity for the regulator, students, universities and legitimate academic
support services. For example, UA understands the current, very broad
definition of ‘providing any part of a piece of work or assignment’ could
capture instances where:
- tutors, friends or family proofread an essay and
recommend the addition of text;
- a
student’s previous essay has been submitted by another student (without the original
students’ knowledge); or
- a
student or students complete the lion’s share of a group work project on behalf
of other students in the group.
If instances such as these are not intended to fall within
the scope of the offences that the Bill would create, the text of this section
needs to be redrafted. The current phrasing (‘any part of a piece of work’) is
too broad.[44]
Universities Australia supports the current Bill, stating:
Universities Australia thanks Education Minister Dan Tehan
for taking a strong stance on the issue and for incorporating our feedback into
the revised Bill.
The legislation now draws a distinction between commercial
cheating services – which face criminal penalties – and civil penalties for
people who help a student cheat without payment.[45]
In relation to the need for penalties for students who
cheat without payment, Professor Bretag of the University of South Australia,
cautioned:
Unlike some commentators, I believe it is important that all
providers of cheating services (commercial or otherwise) be held accountable.
My own research has demonstrated that the vast majority of Australian domestic
students outsource their work to people they know (parents, friends, other
students), and that only a relatively small proportion use commercial
providers. International students are twice as likely as domestic students to
report engaging in contract cheating and significantly more likely to use a
professional service (Bretag et al 2018a). Students who cheat at Non-University
Higher Education Providers are 12 times more likely than university students to
report using a commercial provider (Bretag et al 2019). What this tells us is
that Australian students cheat, but they have access to social capital and
networks such as parents and friends who can facilitate such cheating.
International students, particularly those in short-term study programs (eg
NUHEPs) do not have access to such networks and so are particularly vulnerable
to the seductive offers of ‘assistance’ from commercial providers. It concerns
me greatly that if the Bill only relates to commercial providers, domestic
students (and their families and friends) will be permitted to continue to
cheat without consequence, while international students will, in effect, be
targeted.[46]
Financial
implications
The Explanatory
Memorandum to the Bill states:
TEQSA was provided with additional funding in the 2018-19
Budget for its new role to combat academic cheating services. Funding of $1.1
million was provided in 2018-19 and around $660,000 annual ongoing funding.[47]
Statement of
Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[48]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights has
considered the Bill and sought the Minister’s advice as to its potential to
limit the right to equality and non-discrimination, right to a fair hearing and
right to freedom of expression.[49]
In particular, the Committee sought further information on the following
issues:
- whether
any of the proposed criminal offences, or civil penalty provisions (or any part
of the criminal offences or civil penalty provisions) will vary in operation
depending on whether a person is an Australian citizen and, if so, whether that
differential treatment is based on reasonable and objective criteria such that
it serves a legitimate objective, is rationally connected to that objective and
is a proportionate means of achieving that objective
- how
the civil penalties in the Bill are compatible with criminal process rights,
including whether any limitations on these rights are permissible and
- whether
and how the proposed offence or civil penalty for advertising an academic
cheating service and the injunction power are necessary to protect the rights
or reputations of others, national security, public order, or public health or
morals.[50]
Key issues
and provisions
TEQSA’s role
Currently, under section 134 of the TEQSA Act,
TEQSA’s functions are:
- to
register regulated entities as registered higher education providers
- to
accredit higher education courses of study
- to
investigate compliance issues
- to
advise and make recommendations to the Minister on matters relating to the
quality or regulation of higher education providers
- to
collect, analyse, interpret and disseminate information relating to higher
education providers, awards, quality assurance practice, quality improvement, and
the Higher Education Standards Framework, including advising and making
recommendations to higher education providers on matters relating to the
Threshold Standards
- to
conduct training to improve the quality of higher education
- to
make resources and facilities available to the HESP for the purposes of its
functions
- to
provide independent assessments of information the Secretary provides about
higher education providers
- to
cooperate with its counterparts in other countries
- to
develop service standards it must meet in performing its functions
- any
other functions determined by the Minister by legislative instrument, or
conferred on TEQSA by the TEQSA Act or other Commonwealth law.
Item 33 proposes to amend these functions to add
academic integrity to TEQSA’s responsibilities. Proposed paragraph
134(1)(da) would require TEQSA to ‘protect and enhance academic integrity’
by:
- gathering,
providing and sharing information, and providing education, in relation to the
offences of providing and advertising academic cheating
- conducting
research relating to academic cheating services and
- taking
action to prevent access to online sources of academic cheating services.
Items 1 and 2 make consequential amendments to reflect
TEQSA’s expanded role in the objects of the Act at section 3 and the simplified
outline of the Act at section 4.
Academic
cheating offence provisions
Academic cheating is not currently specifically dealt with
in the TEQSA Act or subordinate legislation. Item 10 of the Bill
proposes to insert two new offences addressing this issue―a prohibition
on providing academic cheating services (proposed section 114A), and a
prohibition on advertising academic cheating services (proposed section 114B).
Both 114A and 114B have separate criminal and civil
versions of the prohibited behaviour.
Proposed subsection 114A(1) prohibits providing,
offering to provide, or arranging for a third person to provide, an academic
cheating service, for commercial purposes. This is a criminal
offence.
Proposed subsection 114A(3) prohibits providing,
offering to provide, or arranging for a third person to provide, an academic
cheating service. This is a civil penalty provision.
Proposed subsection 114B(1) prohibits advertising,
publishing, or broadcasting an advertisement for, an academic cheating service,
for commercial purposes. This is a criminal offence.
Proposed subsection 114B(2) prohibits advertising,
publishing, or broadcasting an advertisement for, an academic cheating service.
This is a civil penalty provision.
All subsections apply only to services provided/advertised
to students undertaking, with a higher education provider, an Australian course
of study, or an overseas course of study provided at Australian premises.
Definition
of key terms
Item 3, which amends the dictionary at section 5,
provides definitions of:
- an academic cheating service, as providing work or undertaking work
for students, in circumstances where the work:
- is,
or forms a substantial part of, an assessment task that students are required
to personally undertake or
- could
reasonably be regarded as being, or forming a substantial part of, an
assessment task that students are required to personally undertake
- an
assessment task, as an assignment, essay, examination, practicum,
presentation, project or any other assessable part of a course of study,
whether mandatory or optional and
- a commercial purpose, as a purpose relating to the derivation of
financial gain or reward.
Construction
of criminal offences (114A(1) and 114B(1))
A breach of either 114A(1) or 114B(1) gives rise to a
criminal offence, and is subject to a maximum penalty of two years imprisonment
or 500 penalty units, or both.[51]
Chapter 2 of the Criminal
Code Act 1995 entitled ‘General Principles of Criminal Responsibility’
contains a comprehensive statement of principles that apply to all Commonwealth
offences unless the relevant legislation specifies that other provisions apply.[52]
These principles apply to offences under the TEQSA Act.
The Code provides that offences have physical elements,
for example doing or not doing an action, and fault elements, such as
intention, knowledge, recklessness or negligence. Under the Code, if the
legislation creating an offence does not specify a fault element for a physical
element consisting of conduct, the automatic fault element is intention.[53]
In relation to the offence of providing, offering to
provide, or arranging for a third person to provide, an academic cheating
service, proposed subsection 114A(2) applies strict liability to certain
elements of the offence, namely that a student to whom the provision or offer
of an academic cheating service is made is undertaking an Australian course of
study with a higher education provider, or an overseas course of study provided
at an Australian university. Strict liability is also applied to the
circumstances that the work provided by the cheating service is, forms a
substantial part of, or could reasonably be regarded as being or forming a
substantial part of, an assessment task that students are required to
personally undertake. This means that it is not necessary for the prosecution
to establish fault for these elements of the offence. The prosecution will need
to prove that the person intended to provide, offer to provide or arrange an
academic cheating service, and that they were reckless as to whether it was
provided for a commercial purpose.[54]
The strict liability elements of the offence prevent
cheating services from attempting to avoid liability by attaching a disclaimer
that purchased essays or other materials are for ‘example only’.[55]
Construction of civil penalties (114A(3) & 114B(2))
Proposed subsections 114A(3) and 114B(2) are civil
penalty provisions, subject to a maximum penalty of 500 penalty units.[56]
In that case, the standard of proof is ‘on the balance of probability’ rather than
the criminal standard of ‘beyond reasonable doubt’.[57]
Civil penalties do not
require that the court be satisfied of any fault element, which makes the
inclusion of a strict liability clause unnecessary.[58]
These subsections differ from 114A(1) and 114B(1)
in that they do not require that the academic cheating service be offered for a
commercial purpose.
Proposed subsection 114A(4) provides that neither the
offence nor the civil penalty provision in section 114A requires proof that
the academic cheating service was provided to, offered to, or arranged for, a
particular student. However, proposed subsection 114A(5) specifies that
this allowance does not apply where the student referred to is an alien, within
the meaning of paragraph 51(xix) of the Constitution.
Constitutional basis
The constitutional basis for possible academic cheating
legislation has been a question throughout the process of developing this Bill.
Under the Constitution,
the Commonwealth does not have explicit Constitutional power to legislate in
relation to education.
Prior to the passage of the Higher Education
Funding Act 1988, the Commonwealth provided financial assistance to
universities via the states. However, since 1988, it has funded universities
directly. The ‘benefits to students’ power (section 51(xxiiiA)) is the main
legal basis for this funding, now under the Higher Education
Support Act 2003, including the Commonwealth
Grant Scheme and the Higher
Education Loan Program (HELP).[59]
Section 8 of the TEQSA Act currently specifies that
the Act relies on the Commonwealth’s legislative powers in relation to:
- trading
or financial corporations (section 51(xx))[60]
- matters
incidental to the execution of any power (section 51(xxxix)) and
- the
government of territories (section 122).
However, the extent to which these provisions can provide
a basis for broad Commonwealth actions in the education area remains a matter
for debate.[61]
The HESP sought advice from the Australian Government
Solicitor (AGS) on ‘the constitutionality of Commonwealth legislative action to
provide better support to institutions and regulators to deter, prevent and
penalise cheating activity’.[62]
Based on this advice, the HESP concluded:
Constitutionally, the situation is problematic, particularly
in relation to domestic students and commercial or organised cheating activity
that does not involve a corporate entity. The AGS confirmed its view that the
Commonwealth does not have sufficient legislative power to neatly or adequately
regulate this area. While reliance can be placed on a number of constitutional
heads of power, such as the communications, the territories and the trade and
commerce powers, significant regulatory gaps would remain.[63]
The Government’s response to the HESP advice reaffirms
this difficulty, stating that a Commonwealth legislated approach:
... would cover the majority of likely commercial cheating
situations, but will see some regulatory gaps; for example where the cheating
activity does not involve communications by mail or electronic means, occurs in
a single state and involves a domestic student.[64]
Items 5 repeals section 8 of the TEQSA Act,
which deals with the constitutional basis for the Act. The Explanatory Memorandum
to the Bill states that section 8 is not an operative provision, and its repeal
will not have any impact on the scope of the TEQSA Act.[65]
Proposed section 114C, inserted as part of the
offence provisions at item 10 specifies alternative constitutional bases
for the academic cheating offences. It specifies that, in addition to the
effect they have in relation to higher education providers, these sections also
have the effect they would have if:
- each
reference in section 114A to the provision, or offer or arrangement of an
academic cheating service was confined to a service, offer or arrangement
provided in the course of trade and commerce with other countries, and among
the states (s51(i) of the Constitution)
- each
reference in section 114A to the provision, or offer or arrangement, of an
academic cheating service was confined to a service, offer or arrangement that
relies on the postal, telegraphic and telephonic power (s51(v) of the Constitution)
- each
reference in section 114A, to:
- a
person who provides, offers to provide, or arranges for a third person to
provide an academic cheating service
- a
third person in respect of whom an arrangement was made or
- each
reference to a student
was confined to a person who is
an alien (s51(xix) of the Constitution)
- each
reference in section 114A to:
- a
person who provides, offers to provide, or arranges for a third person to
provide an academic cheating service or
- a
third person in respect of whom an arrangement was made
was confined to a person who is
a constitutional corporation (s51(xx) of the Constitution)
- each
reference in section 114B to advertising, or publishing or broadcasting an
advertisement for, an academic cheating service was confined to a service or advertising
in the course of trade and commerce with other countries, and among the states
(s51(i) of the Constitution)
- each
reference in section 114B to advertising, or publishing or broadcasting an
advertisement for an academic cheating service was confined to the provision, or
offer or arrangement, of an academic cheating service, or the advertising of
such a service, by means of the postal, telegraphic and telephonic power (s51(v)
of the Constitution)
- each
reference in section 114B to a person who advertises, or publishes or broadcasts
an advertisement for, an academic cheating service was confined to a person who
is an alien (s51(xix) of the Constitution)
- each
reference in section 114B to a person who advertises, or publishes or
broadcasts an advertisement for, an academic cheating service was confined to a
person who is a constitutional corporation (s51(xx) of the Constitution).
These provisions operate so that if the High Court
determined that sections 114A or 114B were not properly founded on a particular
power, then the provisions would continue to operate in the alternative manner
set out above, to the extent that another head or heads of power provides a
valid Constitutional basis.
Injunctions
relating to online locations
Section 127 of the TEQSA Act currently allows TEQSA
to apply for injunctions restraining, a requiring action from, a higher
education provider if the provider has engaged or is engaging in or proposing
to engage in conduct that would be in contravention of the TEQSA Act or
associated regulations. Items 21 to 25 amend section 127 to widen
this power so that TEQSA may seek an injunction against ‘a person’ rather than
this being confined to higher education providers.
Item 26 inserts proposed section 127A, which
would allow TEQSA to:
.. apply, on behalf of the Commonwealth, to the Federal Court
to grant an injunction that requires a carriage service provider to take such
steps as the court considers reasonable to disable access to an online location
that contravenes, or facilitates a contravention of, section 114A or 114B.
The proposed section specifies that this could include
blocking domain names, URLs, and IP addresses.
Proposed subsection 127A(2) allows the application to
include a request that the injunction apply to an online search engine
provider. Proposed subsection 127A(11) provides that the Minister may,
by legislative instrument, exclude a particular search engine or class of
search engine from being subject to such an application from TEQSA.
Under proposed subsection 127A(7), in determining
whether to grant the injunction, the Court may take into account:
- the
proportionality of disabling access to a location or search results in the
circumstances
- the
impact on any person or class of persons likely to be affected
- the
public interest
- whether
TEQSA has given appropriate notice[66]
- other
remedies under the TEQSA Act
- any
other matter prescribed by the regulations and
- any
other relevant matter.
The Court may limit the duration of the injunction, or,
upon application, rescind or vary it.[67]
Such an application can be made by any parties to the injunction, or any other
person prescribed by the regulations.[68]
Under proposed subsection 127A(12), the carriage
service provider or online search engine provider is not liable for any costs
in relation to proceedings unless they enter an appearance and take part in the
proceedings.
Information provision
and disclosure
The Bill also proposes to extend TEQSA’s powers to require
people to give information, and TEQSA’s information sharing capabilities, to
account for situations where information relates to contravention or possible
contravention of section 114A or 114B.
Currently, under section 63, TEQSA may, by written notice,
require a person connected with a higher education provider or former provider,
to give TEQSA information or documentation. Subsection 63(4) specifies that the
requirements do not apply to:
- a
lawyer who is acting, or has acted, for the relevant higher education provider
- national
security information (within the meaning of the National Security
Information (Criminal and Civil Proceedings) Act 2004 (the National
Security Information Act)) or
- documents
or things relating to national security (within the meaning of the National
Security Information Act).
Item 7 inserts subsection 63(1A), which specifies
that a person can be required to give information if TEQSA believes on
reasonable grounds that the person is capable of giving or producing
information, or a document or thing, relating to a matter that constitutes, or
may constitute, a contravention of section 114A or 114B. There is no
requirement in this subsection that the person be connected to a higher
education provider, or former provider.
Item 8 makes a technical amendment to remove
references to the National Security Information Act from these
provisions, but retain the references to ‘national security information’. Item
3, which amends the dictionary at section 5, specifies that national
security and national security information have the same
meaning as in the National Security Information Act.
Item 9 amends the section 63 exemptions to add proposed
subsection 63(5), specifying that proposed subsection 63(1A) does not apply
to:
- a
lawyer who is acting, or has acted, for a person who is suspected of
contravening, or has contravened, the provisions related to providing or
advertising an academic cheating service
- national
security information or
- documents
or things relating to national security.
Currently, under section 188, a person commits an offence,
subject to a maximum penalty of imprisonment for two years, if they disclose or
use higher education information obtained because they are or have been an entrusted
person (that is, a TEQSA Commissioner, HESP member, TEQSA’s Chief
Executive Officer, a member of TEQSA staff, or a TEQSA service provider),[69]
unless that disclosure or use is:
- connected
with their duties as an entrusted person or
- required
or authorised by law.
Item 37 would insert Division 3—Management of academic
cheating services information into Part 10 of the TEQSA Act.
Proposed Division 3 contains proposed section 197A, which specifies that
a person commits an offence, subject to a maximum penalty of two years
imprisonment, if they obtain academic cheating services information
in their capacity as an entrusted person and they disclose the
information to another person, or use the information.[70]
Under proposed subsection 197A(2), disclosure is
not an offence if:
- it
is made for the purposes of the TEQSA Act or the Education Services
for Overseas Students Act 2000 or
- it
is authorised by proposed subsection 197B, which allows TEQSA to disclosure
academic cheating services information:
- if
the person to whom the information relates provides, or is reasonably suspected
by TEQSA of providing, an academic cheating service
- if
TEQSA is disclosing that a person has used, or is reasonably suspected of
using, an academic cheating service, to their higher education provider or
- if
the disclosure by TEQSA is consistent with cooperative arrangements between
TEQSA and the regulatory authority of another country.
The note to proposed subsection 197A(2) specifies
that a defendant bears an evidential burden in relation to this subsection.
Proposed section 197C specifies that a person may
disclose academic cheating services information to TEQSA to assist TEQSA to conduct
compliance assessments and accreditation assessments of courses, protect and
enhance academic integrity, or cooperate with counterparts in other countries.
Proposed section 197D specifies that disclosure
under section 197B does not apply to national security information.
Concluding
comments
This Bill proposes to introduce two new offences and
associated penalties into the TEQSA Act, to make providing and
advertising academic cheating services a contravention of the Act. Importantly,
the scope of these offences does not capture students engaging these services,
leaving student’s academic integrity to higher education providers. The Bill
also excludes non-commercial cheating from criminal liability, meaning friends
and family providing work for students would be liable for civil penalties
only.
Although the idea of TEQSA-led action to address contract
cheating is broadly supported by stakeholders, Australian Government efforts to
legislate in this area may be significantly hampered on two main fronts:
constitutionality and enforceability.
Despite this, the signalling power of legislating against
contract cheating could be regarded as one important element in a multi-faceted
response to the issue, particularly in terms of aiding in having services
excluded from platforms such as Google and PayPal.
In such a multi-faceted response, higher education
providers play a central role both in terms of fostering a learning environment
that inhibits cheating, and detecting issues where they occur.