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Tertiary Education Quality and Standards Agency Amendment (Prohibiting Academic Cheating Services) Bill 2019

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(Circulated by authority of the Minister for Education,

the Hon Dan Tehan MP)




This Addendum responds to concerns raised by the Parliamentary Joint Committee on Human Rights in Scrutiny Report 1 of 2020 (dated 5 February 2020) and Scrutiny Report 4 of 2020 (dated 9 April 2020); the Senate Standing Committee for the Scrutiny of Bills in Scrutiny Digest 1 of 2020 (dated 5 February 2020); and other stakeholders.  


Statement of Compatibility with Human rights


Replace the paragraph under the heading ‘Analysis of human rights implications’ on page 6 with:


The Bill engages the following human rights:

·          the right to education - Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR);

·          the right to privacy and reputation - Article 17 of the International Covenant on Civil and Political Rights (ICCPR);

·          the right to freedom of expression in Article 19 of the ICCPR; and

·          the right to be presumed innocent and right to a fair trial under Articles 14 and 15 of the ICCPR.


At the end of the section ‘Right to Freedom of Expression’ on page 8, insert the following paragraphs:


Limitation on advertising


The Bill prohibits the advertising of cheating services in Australia. Article 19(2) provides that everyone shall have the right to freedom of expression, including the right to seek, receive and impart information orally or through a range of media. Article 19(3) (and Article 10(2) of the European Convention on Human Rights (ECHR)), however, explicitly states that the exercise of the right to freedom of expression carries with it special duties and responsibilities. Accordingly, the exercise of this right may be subject to restrictions as provided by law including where necessary for the protection of public order and reputation.


The protection of public order relevantly extends to ‘the sum of rules which ensure the functioning of society or the set of fundamental principles on which society is founded’ [1] and to ‘permitting regulation in the interests of legitimate public purposes’ provided such a power is exercised consistently with human rights [2] . To that end, the protection of public order includes necessary and proportionate restrictions on the promotion of unlawful activities. This would relevantly include the prohibition of advertising by academic cheating services, where the provision of such services is a criminal offence.


Whether a restriction is proportionate is based on the principles governing a democratic society. In order to prove that interference is “necessary in a democratic society”, States Parties must be satisfied that a “pressing social need” exists, requiring that a particular limitation on the exercise of freedom of expression (in this case, a prohibition on a certain types of advertising) be imposed. There is clear empirical evidence that the advertising of cheating services to students has become pervasive through on-campus advertising, email and social media. As such, the restriction on advertising is a necessary and proportionate response to the pressing social need to curtail this deleterious activity by academic cheating services. The prohibition on this type of advertising protects the market economy from a proliferation of such services by reducing their profile and market visibility and, in turn, removes the opportunity for students to easily seek out these services.


Further, although protected by Article 19, commercial expression (of which advertising is a sub-set) is subject to different standards of control than other types of expression. In decided cases, the European Court has recognised that member states have a wide margin of appreciation in respect of banning certain types of advertisements finding that, having regard to countervailing interests, interference with the exercise of commercial expression was compatible with the requirements of the equivalent Article 10(2) of the ECHR. In principle, consumer rights are effectively undermined by affording leeway for advertisers to deceive or mislead when it comes to describing the characteristics of their commodities or services.

The prohibition on advertising by academic cheating falls within the exemption prescribed by Article 19(3) as the limitations it prescribes on freedom of expression are provided for by law, and are necessary and proportionate to the risk to the reputation of the higher education sector in Australia and the integrity of the delivery of academic courses posed by inaccurate or misleading advertising which directly promotes academic misconduct.


Injunctions and the right to receive information


The Bill also gives the Federal Court the power to block a person’s ability to receive information from academic cheating services through injunctions. The prospective exercise of the court’s power to block access to online locations through the granting of an injunction is subject to the rigours of judicial process and scrutiny. The exercise of this power by courts is predicated on strict legal conditions being satisfied as well as subject to a substantial body of equitable principles and specific statutory provisions governing the nature and parameters of such orders. The power to grant an injunction to block pernicious advertising by cheating services, if considered by a court to be an appropriate remedy having regard to all the facts and circumstances, is rationally connected to the achievement of a legitimate objective. This is reasonably necessary to protect the interests of students and tertiary institutions, and thereby the operational integrity and reputational credibility of academic services in Australia.


After the section ‘Right to Freedom of Expression’ on page 8, insert the following paragraphs:


Compatibility with criminal process rights


The civil penalties contained in the Bill are compatible with the criminal process rights outlined in Articles 14 and 15 of the ICCPR. This includes the right to the presumption of innocence, and the right to a fair trial. However, the civil penalty provisions are not considered ‘criminal’ for the purposes of international human rights law due to the nature and purpose of the penalties. Although the main purpose of the penalties is deterrence, the penalties do not apply to the public in general. The civil penalty provisions are strictly confined to a specific regulatory or disciplinary context, namely providers of cheating services within the higher education sector.


The amount of the pecuniary penalty that may be imposed under the Bill is not punitive having regard to the nature of the industry sought to be regulated (namely, providers and advertisers of higher education cheating services) and having regard to the relative size of the civil pecuniary penalties that may be imposed in comparable corporate settings.


Schedule 1 - Amendments

Detailed explanation


Item 10 - New sections 114A and 114B


After Example 7 on page 16, insert the following paragraphs:


Example 8: George has recently completed an accounting degree, and had created detailed study notes for himself for each of his accounting subjects during the course of his degree, to help him study for exams. George decides to sell copies of his study notes to some of the current accounting students at the university he attended, to help them with studying for similar exams. Although the students use the study notes to help them study, the students personally undertake their exams and do not use the study notes as a substantial part of any assessment task. As George has not provided a substantial part of any of the current student’s assessment tasks, he has not committed an offence or contravened the civil penalty provision under section 114A.


Example 9: Alex is a final year arts/history student, and has attained very high marks on all of his essays during the initial years of his degree. He decides to publish his old essays on a file-sharing website, to be used as exemplars for other students, and is paid a small fee for publishing these assignments. Chloe purchases one of Alex’s essays as a guide to assist her with understanding the kind of research and quality of work required to obtain a high mark for an art history essay. Chloe completes her assessment task personally. As Alex has provided an example of a previous essay, and has not provided a substantial part of Chloe’s assessment task, he has not committed an offence or contravened the civil penalty provision under section 114A.


Example 10 : As in the previous example, Alex publishes his old essays on a file-sharing website and is paid a small fee for publishing these assignments. Zane purchases one of Alex’s essays and uses a significant amount of its content to form a substantial part of his own new assessment task. In this case, Alex undertook to create his original essay for his own assessment task and not for Zane’s assessment task, Alex has not committed an offence or contravened the civil penalty provision under section 114A.


After the last paragraph on page 17, insert the following paragraphs:


Chapter 2 of the Commonwealth Criminal Code Act 1995 (Criminal Code) entitled ‘General Principles of Criminal Responsibility’ contains general principles of criminal responsibility that apply to offences. These principles apply to offences under this Bill. The Criminal Code provides that offences have physical elements, for example doing or not doing an action (conduct), and fault elements, such as intention, knowledge, recklessness or negligence.


The Criminal Code imports fault elements into offences in Commonwealth legislation, where legislation does not specify a fault element. In this case, the offence at subsection 114B(1) does not specify a fault element, therefore the Criminal Code imports an automatic fault element of ‘recklessness’ for the physical element of the offence that consists of a ‘circumstance’. This means that in order for a person to commit an offence under subsection 114B(1), in addition to satisfying the other elements of the offence, the person would need to have been reckless to the possibility that the academic cheating service had a commercial purpose.


Under the Criminal Code, recklessness can be established by proving intention, knowledge or recklessness. This is particularly relevant to the possibility of a person inadvertently promoting or advertising an academic cheating service online. The intent of this Bill is not to prosecute those that inadvertently promote a cheating service, for example, on social media where there is no proof of intention, knowledge or recklessness.


            Example: Lily is a first year university student who has recently received an advertisement via a social media platform for an ‘academic assistance service’. Lily does not realise that this is actually an advertisement for an illegal academic cheating service, and shares the advertisement with some of her friends on social media. Lily has not committed an offence under subsection 114B(1), as she did not have any intention to promote, nor did she have knowledge, or was reckless to the fact she was inadvertently promoting a cheating service.


Item 26 - After section 127


Before the last paragraph in Item 26 on page 22 (beginning with the words: ‘New subsection 127A(12) outlines that a carriage service provider…’), insert the following paragraphs:


Considering the serious and prohibitory nature of these injunctions, it is necessary and appropriate that certain online search engine providers are exempted from the application of injunctions. The intent of these injunctions is to target major online search engine providers that index search results on the World Wide Web and are likely conduits to online locations that host information about cheating services. These injunctions are not intended to capture smaller search engine providers that do not have the same reach. These may include entities that offer third-party internal (e.g. intranet) search functions; entities that provide search services to employees, members or clients that are confined to discrete sites (such as educational and cultural institutions, not-for-profit organisations); or entities that provide search functionality that is limited to their own sites or to particular content or material. As such, exemptions, where necessary, will provide a 'safety net' to ensure that applications for injunctions do not unfairly target smaller search engine providers that do not have the same reach or entities that provide only internal (intranet) or limited search functions.


It is appropriate that such exceptions are made by the Minister in a legislative instrument made under subsection 127A(11) to enable the Minister to flexibly respond to an evolving online environment and ensure exemptions are appropriately targeted.


Item 37 - At the end of Part 10


After the sentence on page 24 (beginning with the words: ‘A note explains that a defendant bears an evidential burden…’), insert the following paragraphs:


It is appropriate to reverse the evidential burden of proof for the offence in new section 197A because it meets the criteria set out in section 4.3.1 of the Guide. More specifically, it is peculiarly within the knowledge of the defendant whether they disclosed or used academic cheating services information obtained in their capacity as an entrusted person for the purposes of the TEQSA Act or the Education Services for Overseas Students Act 2000 . Without this reversal of the evidential burden it would be forensically difficult and expensive for the prosecution to disprove that an allowable purpose existed, whereas proof that an allowable purpose did exist could be more readily provided by the defendant. Notably, the burden that section 197A imposes on a defendant is an evidential burden only (not a legal burden) and does not displace the prosecutor's burden in proving the elements of the offence.


As the reversal of the evidential burden of proof in section 197A meets the criteria set out in the Guide, it is appropriate to use an offence-specific defence in this instance. An evidential burden placed on the defendant is not uncommon and exists in many other pieces of Commonwealth legislation. It is also consistent with the existing offence provision under subsection 188(2) of the TEQSA Act, which also reverses the evidential burden of proof. In these circumstances, the imposition of an evidential burden on the defendant is reasonable and proportionate and does not limit the right to be presumed innocent or the right to a fair trial in the context of an offence provision.


[1] Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights Annex, UN Doc E/CN.4/1984/4 (1984)


[2] See for example, Lockwood, Finn and Lubinsky, "Working Paper on Limitation Provisions", (1985) 7 Human Rights Quarterly 35, at 59