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

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2019

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

Tertiary Education Quality and Standards AGENCY AMENDMENT (PROHIBITING ACADEMIC CHEATING SERVICES) BILL 2019

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Education,

the Hon Dan Tehan MP)



 

Tertiary Education Quality and Standards AGENCY AMENDMENT (PROHIBITING ACADEMIC CHEATING SERVICES) BILL 2019

 

 

OUTLINE

 

 

The Tertiary Education Quality and Standards Agency Amendment (Prohibiting Academic Cheating Services) Bill 2019 (the Bill) gives effect to the Government’s decision to implement recommendations of the Higher Education Standards Panel (the Panel) to introduce deterrents to third party academic cheating services in higher education.

 

The Panel, which advises the Commonwealth Minister for Education on higher education quality and regulatory matters, recommended that legislative action be taken to make it an offence to provide, arrange, or advertise academic cheating services. The Panel’s recommendation drew on New Zealand’s approach to prohibit academic cheating services set out in section 292E of the Education Act 1989 (NZ) . The Panel recommended that legislation focus on the conduct of those who provide cheating services, and not on students who might use such services. Students who cheat remain subject to their institutions’ own academic integrity policies, processes and sanctions, and any consequences that may flow from those.

 

The growing availability and provision of academic cheating services poses a significant threat to the integrity and reputation of the global higher education sector, including Australia’s both domestically and internationally. Third party cheating activity can take a number of forms, but commonly involves the provision of bespoke academic material that is subsequently submitted by a student as their own work for assessment, or a third party impersonating a student in an exam or practical test.

 

In academic circles, this type of cheating activity is often referred to as ‘contract cheating’, on the basis that the student’s work is being outsourced or ‘contracted out’ to another person or organisation. No formal contract may exist, however; and such outsourcing may or may not involve the exchange of financial or other benefits from the student to the third party.

 

Promotion of cheating services to students has become pervasive through on-campus advertising, email and social media. Students of Australian higher education providers are being inundated with targeted promotions for cheating services highlighting their ease of access, minimal cost and low risk of detection; all the while playing down the ethical dishonesty involved.

 

The Panel noted that there is currently no law in Australia that specifically prohibits a higher education student from cheating during their studies, or prohibits a cheating service provider from providing such services. Students who cheat and third party cheating services may be subject to criminal prosecution under state and territory law for various offences such as fraud, deception, dishonestly obtaining an advantage, conspiracy to defraud, forgery and related offences. That being said, such offences can be difficult to pursue, and require action by state and territory law enforcement and public prosecutors, which can be hard to justify.

 

Depending on the circumstances, civil actions against students or providers of cheating services may involve breach of contract, the tort of deceipt and misleading or deceptive conduct under the Australian Consumer Law. Again, these actions can be complex to mount, and are not specifically designed to address academic cheating. Furthermore, some cases may require proof of financial loss on the part of the higher education provider to be successful, when reputation may be the issue primarily at risk.

 

The new offences created by the Bill will assist higher education providers to more easily demonstrate to students, to academic cheating services, and to their broader stakeholders that cheating activity is not only unethical but illegal. Illegal behaviour  will be simpler to detect, gather evidence about, and, if necessary, for the Tertiary Education Quality and Standards Agency (TEQSA) to investigate and refer to the Commonwealth Director of Public Prosecutions (CDPP). The criminalisation of these behaviours will also demonstrate to Australia’s international market of potential students, their parents/guardians, foreign governments, and overseas employers that Australia takes the quality and integrity of its higher education system, its higher education qualifications, and its graduates very seriously. These new offences demonstrate Australia’s commitment to doing all it can to counteract threats to that integrity.

 

Deterring the provision and advertising of academic cheating services through the operation of the penalties in the Bill is vital, because of the detrimental consequences that academic cheating services can have on the reputation and value of Australia’s higher education product. In 2018, international education was Australia’s largest services export industry, contributing $35.1 billion to Australia’s economy, and supporting over 240,000 jobs. Damage to the Australian higher education sector’s reputation could result in reduced international enrolments, reduced acceptance of Australian qualifications in the international employment market, and reduced international mobility for Australian higher education graduates. Any of these outcomes would significantly impact the national economy.

 

There are also significant public confidence and safety risks, should a graduate who does not have the required skills and knowledge (and who engaged in academic cheating during their studies) go on to a professional career in a position of public trust or assurance - for example in engineering, or the health professions.

 

The measures contained in the Bill will:

·          make it an offence for any person to provide or advertise academic cheating services relating to the delivery of higher education in Australia, whether that person is in Australia or elsewhere;

·          provide for financial and custodial penalties where an offence is proven. The Bill distinguishes between cheating services provided on a commercial basis, and where the cheating service is provided without payment. Criminal and civil penalties will apply to commercial cheating services; civil penalties only will apply to unpaid cheating services. Research [1] has shown that a large proportion of third party cheating occurs on a non-commercial basis, for example by friends, family or community members. This activity is also a threat to the integrity of student assessments and, ultimately, of the qualifications earned by students. It is therefore appropriate to deter this type of activity, albeit with a lesser penalty; and

·          expand TEQSA’s role, as the regulator responsible for administering the law, to include:

o    education about the effect of the laws;

o    monitoring and intelligence gathering on related activity;

o    capacity to seek injunctions to require internet carriage service providers and online search engine providers to block access to domestic and international websites promoting cheating services;

o    investigation of identified alleged offenders, along with capacity to support institutions and law enforcement agencies to investigate suspected offences;

o    referring matters to the CDPP for prosecution; and

o    sharing information about academic cheating services, and their users with higher education providers and overseas higher education regulatory authorities.

 

 



FINANCIAL IMPACT STATEMENT

 

 

 

 

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.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

 

Prepared in accordance with Part 3 of the Human Rights

(Parliamentary Scrutiny) Act 2011

 

Tertiary Education Quality and Standards AGENCY AMENDMENT (PROHIBITING ACADEMIC CHEATING SERVICES) BILL 2019

 

The Tertiary Education Quality and Standards Agency Amendment (Prohibiting Academic Cheating Services) Bill 2019 (the Bill) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

 

The Bill  gives effect to the Government’s decision to implement recommendations of the Higher Education Standards Panel (the Panel) that legislative action be taken to prevent the provision and advertising of academic cheating services in higher education.

 

The Bill creates financial and custodial penalties to apply where an offence of either providing, or advertising an academic cheating service is proven. The Bill appoints the Tertiary Education Quality and Standards Authority (TEQSA) to administer the new laws, and expands its existing role to include education about the effect of those laws, intelligence gathering, investigation and referral for prosecution of offences. TEQSA will also have power to seek injunctions to require internet carriage service providers, and online search engine providers to block access to websites promoting cheating services. TEQSA will also be permitted to share information about academic cheating services and their users with higher education providers and overseas higher education regulatory authorities, with safeguards to prevent the inappropriate use of students’ personal information.

 

Analysis of human rights implications

 

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); and

·          the right to freedom of expression in Article 19 of the ICCPR.

 

Right to education

 

The Bill engages the right to education which is set out in Article 13 of the ICESCR.

The right to have access to further education, vocational and continuing training recognises the important personal, societal, economic and intellectual benefits of education.

 

The Bill is compatible with the right to education because it will allow TEQSA to carry out an enhanced role to prevent and minimise the use and promotion of academic cheating services. This will greatly assist in protecting the integrity of Australian higher education for students, which in turn ensures that the Australian Government continues to make high quality education available and accessible to all students, thus promoting the right to education.

 

The Bill does not in any way impinge on the right of individuals to undertake higher education, nor of registered higher education providers to offer or deliver higher education.

 

Right to privacy and reputation

 

The Bill engages with Article 17 of the ICCPR, which states that “no one shall be subject to arbitrary or unlawful interference with his privacy…nor to unlawful attacks on his honour and reputation” and that “everyone has the right to the protection of the law against such interference or attacks”.

 

Collecting, using, storing, and disclosing personal information amounts to an interference with privacy. In order for the interference with privacy not to be ‘arbitrary’, any interference with privacy must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances. Reasonableness, in this context, incorporates notions of proportionality, appropriateness and necessity.

 

The right to privacy includes respect for informational privacy including the right to respect the storing, use and sharing of private information and the right to control the dissemination of private information.

 

The right to privacy under Article 17 can be permissibly limited in order to achieve a legitimate objective and where the limitations are lawful and not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the particular circumstances.

 

The Bill engages the right to privacy by authorising TEQSA to obtain evidence, through the collection and storage of personal information, in order to investigate and potentially refer for prosecution a person offering academic cheating services. Personal information collected will be of the person or provider offering the academic cheating service, and also information relating to the users of academic cheating services. Safeguards and accountability measures are in place in the Bill because there are conditions around the disclosure of this personal information; namely, that TEQSA must reasonably suspect that the information relates to the provision or use of an academic cheating service, and that TEQSA must know or reasonably suspect that there is a connection to an Australian higher education provider. TEQSA may also disclose academic cheating services information to higher education regulatory authorities in other countries, if TEQSA has a cooperative arrangement with that country, and the disclosure is consistent with that arrangement.

 

These powers to disclose personal information will be important to enable TEQSA to work cooperatively with its key stakeholders to perform its new function “to protect and enhance academic integrity by prohibiting academic cheating services”.

 

The Bill is compatible with the right to privacy, in that it restricts the right to disclose  academic cheating services information to particular institutions and for a reasonable purpose. The limitation of the right to privacy is justifiable, reasonable and proportionate to the policy objective of protecting and enhancing academic integrity, thereby protecting students and Australia’s international reputation for having a high quality higher education sector. A person’s right to privacy has therefore not been impacted in an arbitrary manner.

 

Right to freedom of expression

 

The Bill engages the right to freedom of opinion and expression as contained in article 19 of the ICCPR.  Amongst other things, Article 19 states that individuals must have the ‘freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers’. Under article 19(3), the right to freedom of expression may be subject to limitations that are necessary to protect the rights or reputations of others, national security, public order, or public health or morals.  Limitations must be prescribed by law, pursue a legitimate objective, be rationally connected to the achievement of that objective and a proportionate means of doing so.

 

The Bill would enable the Federal Court to order internet carriage service providers and online search engine providers to block access to domestic and international websites promoting academic cheating services. The effect of the order would be to prevent users located in Australia from easily accessing specific websites, or from receiving search results from an internet search engine, that provide a pathway to certain online locations that offer or advertise academic cheating services. Inherently, such an injunction would impact the reach of the cheating service providers’ website in Australia, and restrict their right to ‘impart information’ as contemplated by Article 19.

 

An injunction power is a reasonable, necessary and proportionate response to the need to prevent academic cheating services being accessed by persons in Australia. The injunctions power would be subject to a number of safeguards, by enabling the Court to take account of a wide range of factors under subsection 127A(7) before granting an injunction.

 

Conclusion

 

The Bill is compatible with human rights. To the extent that it may limit human rights, these limitations are reasonable, necessary, proportionate, and non-arbitrary.

 



Tertiary Education Quality and Standards AGENCY AMENDMENT (PROHIBITING ACADEMIC CHEATING SERVICES) BILL 2019

 

NOTES ON CLAUSES

 

Clause 1 - Short title

 

This clause provides for the Act to be the Tertiary Education Quality and Standards Agency Amendment (Prohibiting Academic Cheating Services) Act 2019.

 

Clause 2 - Commencement

 

The table in subclause 2(1) sets out when the Act’s provisions will commence. The table provides that the whole of the Act commences on the day after this Act receives the Royal Assent.

 

Subclause 2(2) provides that information in column 3 of the table at subclause 2(1) is not part of the Act and information may be inserted into column 3 or information in it may be edited in any published version of the Act.

 

Clause 3 - Schedules

 

This clause provides that any legislation that is specified in a schedule is amended or repealed as set out in the applicable items in the schedule and that any other item in a schedule has effect according to its terms.

 

 

 

List of abbreviations

 

Panel                         Higher Education Standards Panel

TEQSA                       Tertiary Education Quality and Standards Agency

TEQSA Act                Tertiary Education Quality and Standards Agency Act 2011

 

 

 

 

 

 

 

 

 

 



 

Schedule 1   Amendments     

 

Summary

 

 

The amendments contained in this Schedule give effect to the Government’s decision to implement recommendations of the Panel to introduce deterrents to offering, providing or promoting third party academic cheating services in higher education. The Panel recommended that legislative action be taken to make it an offence to provide or advertise academic cheating services in higher education.

 

The amendments will create financial and custodial penalties to apply where a criminal offence of either providing, or advertising an academic cheating service on a commercial basis is proven. Civil financial penalties alone will apply where an academic cheating service is supplied without remuneration or benefit.

 

The amendments appoint TEQSA to administer the law, and expand its existing role to include education about the effect of the laws, intelligence gathering, investigation, and referral for prosecution of offences. TEQSA will also have power to seek injunctions to require internet carriage service providers, and online search engine providers to block access to websites promoting cheating services. TEQSA will also be permitted to share academic cheating services information with higher education providers and overseas higher education regulatory authorities.

 

 

Detailed explanation

 

 

 

Item 1 - Section 3

 

Item 1 inserts a new object into section 3 of the TEQSA Act, to provide that the Act also has the purpose of protecting and enhancing academic integrity by prohibiting academic cheating services.

 

Item 2 - Section 4

 

Item 2 makes an addition to the simplified outline in section 4 of the TEQSA Act, to provide that TEQSA’s role includes preventing and minimising the use and promotion of academic cheating services.

 

Item 3 - Section 5

 

Item 3 inserts definitions of the terms and expressions used in the Bill into section 5 of the TEQSA Act as follows:

 

academic cheating service means the provision of work to or the undertaking of work for students, in circumstances where the work:

(a) is, or forms a substantial part of, an assessment task that students are required to personally undertake; or

(b) could reasonably be regarded as being, or forming a substantial part of, an assessment task that students are required to personally undertake.

academic cheating services information means information that:

                     (a)  was obtained under, or for the purposes of, this Act; and

                     (b)  relates to the use or provision of an academic cheating service by a person; and

                     (c)  identifies, or is reasonably capable of being used to identify, the person.

assessment task means an assignment, essay, examination, practicum, presentation, project or any other assessable part of a course of study, whether mandatory or optional.

carriage service provider has the same meaning as in the Telecommunications Act 1997 .

commercial purpose means a purpose relating to the derivation of financial gain or reward.

entrusted person means a person who is or was any of the following:

                     (a)  a Commissioner;

                     (b)  a Panel member;

                     (c)  the Chief Executive Officer;

                     (d)  a member of the staff of TEQSA;

                     (e)  a person performing a service for TEQSA.

national security has the same meaning as in the National Security Information (Criminal and Civil Proceedings) Act 2004 .

national security information has the same meaning as in the National Security Information (Criminal and Civil Proceedings) Act 2004 .

 

The definition of academic cheating service limits the types of assistance that are prohibited by the Bill to cases where all or a substantial part of an assessment task is offered or provided by the service. In practice, this means that incidental or inconsequential assistance, advice or example answers that might be offered to a student are not at risk of being captured by the new offence provisions. Any assistance that did not change the intent or meaning of the student’s work would not be prohibited by the Bill. For example, while editing of a student’s work by a third party might be prohibited by institutional policy, it would not be prohibited by the Bill so long as it didn’t represent a substantial part of the work. Further examples of assistance that would not be prohibited by the Bill are canvassed at item 10.

 

While the definition of academic cheating service does not specify which students might be the recipients of the services in question, new sections 114A and 114B at item 10 subsequently limit the scope of prohibition to services that are provided, offered, arranged or advertised to students undertaking an Australian course of study (whether delivered in Australia or overseas) or an overseas course of study at Australian premises . These terms, already defined in section 5 of the TEQSA Act, limit the prohibition to cheating services offered to a student enrolled with a higher education provider on the TEQSA National Register, including offshore delivery of Australian courses.

 

Item 4 - Division 4 of Part 1 (heading)

 

Item 4 repeals the heading of Division 4 of the TEQSA Act, and substitutes a new heading.

 

Item 5 - Section 8

 

Item 5 repeals existing section 8 of the TEQSA Act, as the relevant powers providing the constitutional basis of the Act are referenced in the definitions of higher education provider and regulated entity, and some new provisions in the Bill rely upon additional sources of power.  Section 8 is not an operative provision.  Its repeal effects no change to the scope or operation of the Act.

 

Item 6 - Section 63 (heading)

 

Item 6 repeals the existing heading of section 63 of the TEQSA Act and substitutes a new heading.

 

Item 7 - After subsection 63(1)

 

Item 7 inserts a new subsection 63(1A) into the TEQSA Act, which specifies that section 63 applies to a person if TEQSA believes on reasonable grounds that the person is capable of giving or producing information, or a document or a thing, relating to a matter that constitutes, or may constitute, a contravention of sections 114A or 114B.

 

Item 8 - Paragraphs 63(4)(b) and (c)

 

Item 8 amends paragraphs 63(4)(b) and (c) of the TEQSA Act to omit “(within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 )”, as it is no longer required following the insertion of definitions of national security and national security information into section 5.

 

Item 9 - At the end of section 63

 

Item 9 inserts a new subsection 63(5), which specifies that new 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, section 114A or 114B, or to national security information, or to documents or things relating to national security.

 

This ensures that the compulsive powers in section 63 do not require lawyers to violate legal professional privilege, and will not compromise national security.

 

Item 10 - New sections 114A and 114B

 

Item 10 inserts, at the end of Subdivision A of Division 2 of Part 7 of the TEQSA Act, new sections 114A and 114B.

 

Subsection 114A(1) makes it an offence for a person to provide, offer to provide, or arrange for a third person to provide, for a commercial purpose, an academic cheating service to a person undertaking with a higher education provider:

·          an Australian course of study; or

·          an overseas course of study provided at Australian premises.

 

The maximum penalty for doing so is 2 years imprisonment or 500 penalty units, or both.

 

In framing these offences, regard was had to “A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers” (The Guide). This maximum penalty is appropriate to ensure that the Bill achieves the intended deterrent effect. Deterrence will be critical to the success of this legislation and strong penalties are an essential element of this.

 

Academic cheating services seriously undermine the integrity of the Australian higher education system and the consequences of students accessing these services can be severe. If a student graduates having relied on the assistance of a cheating service rather than personally achieving the required level of academic attainment, in fields such as medicine or engineering, the consequences can be life threatening.

 

Academic cheating services also undermine the reputation of the Australian higher education system. Anecdotal evidence indicates that awareness of the 2014 MyMaster contract cheating incident, in which an Australian-based essay writing service was uncovered and publicised, was very quick to spread among international regulators and raised questions in some minds about the integrity of Australia’s higher education offering. International education is Australia’s largest services export industry, contributing $35.1 billion to Australia’s economy in 2018, and supporting over 240,000 jobs. International students rate the reputation of the Australian education system, its qualifications and providers as key factors in their choice of Australia as a study destination. Reputational damage to the Australian higher education sector, including through being perceived as not acting to deter these services, could impact the national economy.

 

For these reasons, it is important that the Bill has a strong deterrent effect by imposing significant penalties, including imprisonment for commercial providers of academic cheating services. 

 

The Bill departs from the fine/imprisonment ratio recommended in the Guide, by providing a more significant financial penalty for the offence, relative to the period of imprisonment. This is appropriate to reflect the significant monetary gains that providers of academic cheating services can obtain through delivering these services. Without a significant financial penalty, the Bill may not provide a suitable deterrent for providers of academic cheating services.

 

While there is no definitive data on how much money cheating service providers are making, a research project in the United Kingdom in 2018 reported costs for purchasing an undergraduate final year essay being in the range of £170 to £370 (around $320 to $700 AUD). Australian research from 2018 indicates around 2.2 per cent of Australian higher education students (approximately 33,300) self-reported that they ‘obtained an assignment (to submit)’. This would give a conservative estimate of the market for purchased assignments in Australia in the vicinity of $10 million to $23 million. The one prosecution to-date in New Zealand was a large commercial enterprise with NZD$2.2 million in proceeds of crime recovered.

 

Without a significant financial penalty, the Bill is unlikely to sufficiently deter providers of academic cheating services.

 

Subsection 114A(2) provides that strict liability applies to paragraph 114A(1)(a) and the physical element of circumstance in paragraphs (a) and (b) of the definition of academic cheating service in section 5. This subsection removes a fault element that would otherwise attach to paragraph 114A(1)(a) and paragraphs (a) and (b) of the definition of academic cheating service. It is therefore not necessary to demonstrate that a person was at fault in contravening section 114A; it is sufficient that their conduct was a contravention of section 114A.

 

Strict liability with respect to these elements of the offence is appropriate in this case, because requiring proof of fault for this offence would seriously undermine the intended deterrent effect of the Bill. Requiring proof of fault would allow providers of cheating services to attach disclaimers to the services that they provide, despite knowing that their services will be used to allow students to cheat on assessment tasks.

 

These types of disclaimers, where a cheating service includes a statement that the purchased essay they have provided is ‘an example only’ or ‘not to be submitted as the purchaser’s own work’, are already part of the business model of these services. It is important that these types of potential ‘loopholes’ are prevented through the use of strict liability.

 

 

Example: Scott runs a website that offers custom essays to students for a price based on the number of words in the essay. Scott markets his services on university campuses and is aware that his essays are usually submitted as assessment tasks to higher education providers. Costa is a first year economics student at a higher education provider, who pays Scott to write the final essay for one of his units of study. Scott provides Costa with the essay, and makes Costa endorse a declaration that the purchaser understands that the essay produced by the website is a model answer only and should not be submitted for assessment as the purchaser’s own work. Costa acknowledges his acceptance of the declaration by clicking in the appropriate box on screen, and subsequently submits the essay as his assessment task. Requiring proof of fault would not deter Scott from continuing to sell custom essays, as Scott would be able to argue that he did not intend for his essays to be used by students as their own work.

 

 

Subsection 114A(3) specifies that a person contravenes this civil penalty subsection if the person provides, offers to provide, or arranges for a third person to provide an academic cheating service to a person undertaking, with a higher education provider, an Australian course of study or an overseas course of study provided at Australian premises. 

 

The maximum civil penalty for contravention of this subsection is 500 penalty units.

 

The civil penalty, which is limited to a financial penalty only, is applicable regardless of whether or not the academic cheating service was offered, arranged or provided in return for a financial gain or reward.

 

Providing an academic cheating service, even when it is not for a commercial purpose, undermines the integrity of Australia’s higher education system and can have serious consequences. Australian research demonstrates that a large proportion of third party cheating occurs on a non-commercial basis, for example by friends, family or community members. It is important that this type of cheating also be deterred, albeit with less significant penalties applicable. Custodial penalties will not apply for non-commercial cheating service provision.

 

Examples of assistance that are not academic cheating services

 

As noted at item 3, the definition of academic cheating service limits the types of assistance that are prohibited by the Bill to cases where all, or a substantial part of an assessment task that a student is required to personally undertake is offered or provided by the service. Because of this, no specific exemptions for types of assistance are considered necessary to include in the Bill. The following are examples of conduct that would not be an offence under section 114A.

 

Example 1: Stephanie is a student with disability at a higher education provider. Stephanie’s disability prevents her from writing exam papers. Stephanie requests assistance from her higher education provider to complete her exam paper. Stephanie’s higher education provider assigns John to act as a scribe for Stephanie. Stephanie directs John on the words to write on her behalf. As John is writing Stephanie’s own words and is not changing them prior to writing them, he is not creating a substantial part of the work, and has not committed an offence or contravened the civil penalty provision under section 114A.



Example 2: Steve, Nicole and Dharini are students at a higher education provider and are required to work as a group to produce an assessment task. The group divides the task to make each member of the group responsible for producing a different part of the assessment task, with each member’s name on the final task. As their higher education provider does not require group members to personally undertake the entire assessment task, and instead provides equal credit to each contributor for group assessment tasks, neither Steve, Nicole, nor Dharini has committed an offence or contravened the civil penalty provision under section 114A.

 

Example 3: Debbie is a student at a higher education provider, completing a doctoral thesis. Debbie’s higher education provider allows the use of editorial services for doctoral theses. Claire runs a professional editorial service that fixes formatting, typographical and grammatical issues in higher education assessment tasks. Claire is paid by Debbie to edit Debbie’s doctoral thesis. As editing Debbie’s doctoral thesis does not represent a substantial part of the assessment task, Claire has not committed an offence or contravened the civil penalty provision under section 114A .

  

Example 4: Eloise is a first year student at a higher education provider who is required to produce a 5000 word research task. Eloise is not confident with referencing correctly, so her mother, Michelle, prepares some of the references to be included in the bibliography, as a guide to Eloise. Eloise then completes the rest of the bibliography using Michelle’s examples as a template. As the references Michelle prepared do not represent a substantial part of the assessment task, Michelle has not committed an offence or contravened the civil penalty provision under section 114A.

 

Example 5: Rena is a second year law student at a higher education provider, who is struggling with a written assessment task. Her mentor Kristy-Lee works as a lawyer. Kristy-Lee reviews Rena’s draft assessment task, suggests areas for improvement and proof-reads the assessment task. Rena then works to improve her assessment task as Kristy-Lee has suggested. As Kristy-Lee‘s advice and proof-reading does not form a substantial part of Rena’s assessment task, Kristy-Lee has not committed an offence or contravened the civil penalty provision under section 114A.

 

Example 6: Bernie is a first year music student at a higher education provider. Bernie seeks help from Marie, a professional tutor endorsed by the higher education provider. Marie tutors Bernie and provides advice on his assessment tasks. Marie’s advice assists Bernie to complete his assessment tasks. As Bernie completes the assessment tasks himself, Marie’s tutoring service has not provided a substantial part of Bernie’s assessment tasks so her service is not an offence or contravention of the civil penalty provision under section 114A.

 

Example 7: Ivan and Priya are both students in a higher education statistics course. Ivan asks Priya for help as he is having trouble using the statistical analysis computer software, which he is required to use for the major assignment. Priya gives Ivan some advice on how to use the software and also makes some suggestions about the best way for Ivan to present his results. Priya’s actions do not form a substantial part of Ivan’s assessment task, as Ivan still needs to complete the assessment task himself. Priya has not committed an offence or contravened the civil penalty provision under section 114A.

 

Subsection 114A(4) specifies that, in proceedings for a contravention of subsection (1) or (3), it is not necessary to prove that the person provided, offered to provide or arranged for a third person to provide an academic cheating service to a particular student.

 

This will enable evidence to be gathered that demonstrates the provision or arrangement of the service to be used, even where evidence of the specific student to whom the service was provided may be lacking or well hidden - for example through use of data encryption.

 

Subsection 114A(5) provides that subsection (4) does not apply in relation to proceedings for a contravention of subsection (1) or (3), if the student referred to in that subsection is an alien (within the meaning of paragraph 51(xix) of the Constitution).

 

New subsection 114B(1) specifies that a person commits an offence if the person advertises, or publishes or broadcasts an advertisement for, an academic cheating service to students undertaking, with a higher education provider, an Australian course of study or an overseas course of study provided at Australian premises. Subsection 114B(1) also specifies a person only commits this offence where the person advertises, or publishes or broadcasts an advertisement, for a commercial purpose, or the academic cheating service has a commercial purpose.

 

The penalty for this offence is 2 years imprisonment or 500 penalty units, or both.

 

This penalty is appropriate as advertising is an integral part of the business model used by cheating service providers. The advertising of cheating services has become increasingly prolific and targeted in recent years, with students being inundated with promotional material. These can include both low-tech approaches such as flyers on light poles and noticeboards with tear-off contact details, fellow students acting as commissioned sales brokers both in person and through institutional chatrooms and email; and more sophisticated campaigns using advertising and social media platforms.

 

Persuasive marketing techniques are used to highlight ease of access and low risk of detection, while playing down the ethical dishonesty of using such services. Many cheating services promote their services as altruistic enterprises, acting in the interests of students under academic stress. Students who are struggling can find themselves targeted via social media by cheating service providers. Many cheating service providers will offer ‘support’ to students and appear sympathetic to students’ personal circumstances. Students can be especially vulnerable if they are experiencing ill health, are under financial pressure, or fear the consequences of failing. For some cohorts, this could include threats such as putting their student visa and family honour at stake. Academic cheating services exploit these students and may convince them that what they are doing is acceptable under the circumstances.

 

New subsection 114B(2) specifies that a person contravenes the civil penalty provision if the person advertises, or publishes or broadcasts an advertisement for, an academic cheating service to students undertaking, with a higher education provider, an Australian course of study or an overseas course of study provided at Australian premises.

 

Unlike subsection 114B(1), subsection 114B(2) does not require the person advertising, publishing or broadcasting an advertisement, or the academic cheating service, to have a commercial purpose. This is appropriate because advertising an academic cheating service, even when it is not for a commercial purpose, undermines the integrity of Australia’s higher education system. As noted above, Australian research has shown that a large proportion of third party cheating occurs on a non-commercial basis, for example by friends, family or community members. The significant penalty will provide a strong deterrent to any person who considers advertising, publishing or broadcasting information about an academic cheating service in any form, whether for financial reward or even for misguided altruistic reasons. Custodial penalties will not apply where both the advertising and cheating service provision are non-commercial.

 

Example: Joy runs a not-for-profit tutoring service for the people in her neighbourhood. In order to give her students the best chance of succeeding, Joy has been completing substantial parts of assessment tasks for students using her service without asking anything in return from those students and this is well known in her community. Eleanor runs a not-for-profit community newsletter in the neighbourhood and has heard of Joy’s work. She is asked by Joy to run an advertisement for her service and does so. As Eleanor’s community newsletter is not run for a commercial purpose, and Joy’s tutoring service is not for a commercial purpose, Eleanor has not committed an offence under subsection 114B(1). However, Eleanor could be subject to a civil penalty under section 114B(2) as she has advertised a service that she knows has a reputation for helping students to cheat.

 

The penalty for contravention of this civil penalty provision is 500 penalty units.

 

New section 114C sets out the alternative constitutional bases of sections 114A and 114B, and specifies that, in addition to the effect they have in relation to higher education providers (refer to section 5 of the TEQSA Act for the definition of higher education provider ), they also have effect as provided by section 114C.  The main constitutional operation of sections 114A and 114B is as laws with respect to constitutional corporations, corporations formed under a law of a Territory, persons that operate in a Territory, and corporations formed under a law of the Commonwealth.  Subsections 114C(2) to (9) give sections 114A and 114B operations that are in addition to this main operation.

 

Item 11 - Subsection 115(2)

 

Item 11 omits “(but not exceeding the amount specified for the provision)” from subsection 115(2) of the TEQSA Act.

 

Item 12 - Subsection 115(2)

 

Item 12 inserts new subsections 115(2A) and 115(2B).

 

New subsection 115(2A) specifies that, subject to subsection 115(2B), in determining a financial penalty under subsection 115(2), the Court must not determine a penalty exceeding the financial penalty specified for the civil penalty provision.

 

New subsection 115(2B) specifies that, if a court is satisfied that a body corporate has contravened the civil penalty provisions at subsections 114A(3) or 114B(2), the Court may determine a financial penalty not exceeding an amount equal to 5 times the financial penalty specified for the civil penalty provision.

 

This means that, if a body corporate (not an individual) either:

·          provides, offers to provide or arranges for a third person to provide; or

·          advertises, or publishes or broadcasts an advertisement for, an academic cheating service,

 

a Court may determine a financial penalty that is 5 times the amount specified for the civil penalty provision.

 

This brings the operation of the civil financial penalty provisions in the Bill for bodies corporate into line with the rules that apply in relation to criminal financial penalties under the Crimes Act 1914 , consistent with the Guide.

 

A note explains that if a body corporate is convicted of an offence against subsection 114A(1) or 114(B) (1), subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty set out in the relevant subsection.

 

Item 13 - Subsection 125(1)

 

Item 13 omits “regulated entity” from subsection 125(1) of the TEQSA Act and substitutes “person”.

 

Item 14 - Paragraphs 125(1)(a), (b), and (c)

 

Item 14 omits the words “the entity” wherever occurring in paragraphs 125(1)(a), (b) and (c) of the TEQSA Act and substitutes “the person”.

 

Item 15 - Subsections 125(3) and (4)

 

Item 15 omits the words “regulated entity” from subsections 125(3) and (4) of the TEQSA Act and substitutes “person”.

 

Item 16 - Subsection 125(5)

 

Item 16 inserts, before the words “TEQSA may” in subsection 125(5) of the TEQSA Act and, inserts the words “If the person giving the undertaking is a regulated entity,”.

 

Item 17 - Paragraph 126(1)(a)

 

Item 17 omits the words “regulated entity” from paragraph 126(1)(a) of the TEQSA Act and substitutes the word “person”.

 

 

 

Item 18 - Paragraph 126(1)(c)

 

Item 18 omits the words “the entity” from paragraph 126(1)(c) of the TEQSA Act and substitutes the word “person”.

 

Item 19 - Subsection 126(2)

 

Item 19 omits the words “regulated entity” from subsection 126(2) and substitutes the word “person”.

 

Item 20 - Paragraphs 126(2)(a), (b) and (c)

 

Item 20 omits the words “the entity” wherever occuring from paragraphs 126(2)(a), (b) and (c) of the TEQSA Act and substitutes the words “the person”.

 

Item 21 - Section 127 (heading)

 

Item 21 repeals the existing heading for section 127 of the TEQSA Act, and substitutes a new heading.

 

Item 22 - Subsection 127(1)

 

Item 22 omits the words “regulated entity” from subsection 127(1) of the TEQSA Act and substitutes the word “person”.

 

Item 23 - Paragraphs 127(1)(c) and (d)

 

Item 23 omits the words “the entity” from paragraphs 127(1)(c) and (d) of the TEQSA Act and substitutes the words “the person”.

 

Item 24 - Paragraph 127(2)(a)

 

Item 24 omits the words “regulated entity” from paragraph 127(2)(a) of the TEQSA Act and substitutes the word “person”.

 

Item 25 - Subsection 127(2)

 

Item 25 omits the words “the entity” from subsection 127(2) of the TEQSA Act and substitutes the words “the person”.

 

Item 26 - After section 127

 

Item 26 inserts a new section 127A into the TEQSA Act, which deals with injunctions relating to online locations that facilitate the provision or advertising of academic cheating services. This will make it more difficult for Australian internet users to find and use websites that offer academic cheating services. Web-based academic cheating service provision is by far the most prevalent model of paid cheating service operation. Custom essay writing websites are sophisticated and operate across international borders, with the client, business platform (e.g. website) and content providers distributed across multiple jurisdictions.

 

Section 127A will be particularly important to reduce the visibility of, and ease of access to, overseas websites that provide or advertise cheating services. While prosecution of overseas website operators and content authors may be difficult, blocking of these sites by internet service providers and online search engine providers is an action that can be taken from within Australia and will go some way to reducing their availability and impact. Research from 2019 looking at the provision of cheating services on a freelance basis, found over 5,000 contractors were offering academic writing services on one ‘auction’ style website alone; and noted that a high proportion of these contractors were from one overseas country.

 

New subsection 127A(1) specifies that TEQSA may apply, on behalf of the Commonwealth, to the Federal Court to grant an injunction that requires a carriage service provider to take steps that the Court considers reasonable to disable access to an online location that contravenes, or facilitates a contravention of, section 114A or 114B.

 

New subsection 127A(2) provides that an application made by TEQSA under subsection 127A(1) may also request that the injunction require an online search engine provider (other than a provider that is covered by a declaration under subsection 127A(11)) to take such steps as the Court considers reasonable so as not to provide a search result that refers users to the online location.

 

Online search engines enable users to discover the existence of online locations that may be the subject of an injunction. In some cases, search results can disclose alternate pathways to these online locations, which would undermine the effectiveness of injunctions granted under section 127A(1). For example, search results often contain, or disclose, online locations with links to domain names and Uniform Resource Locators (URLs), that might not be specified in the injunction but would allow the user to access the online location.

 

New subsection 127A(3) confers jurisdiction on the Court to grant an injunction in the terms and subject to the conditions that the Court considers appropriate.

 

A note to this subsection explains that the matters that the Court may take into account when determining whether to grant the injunction are listed in subsection 127A(7).

 

A further note explains that the terms and conditions of the injunction that apply to a carriage service provider under subsection 127A(1) may be different from those that apply to an online search engine provider under subsection 127A(2).

 

New subsection 127A(4) specifies, without limiting subsection 127A(3), particular things that the injunction may specify, including requiring carriage service providers to block domain names, URLs and Internet protocol (IP) addresses that provide access to the online location and that are specified in the injunction.

 

New subsection 127A(5) provides that the parties to an action under subsection 127A(1) are TEQSA and the carriage service provider, as well as an online search engine provider (if the application includes that provider) and the person who operates the online location (only if that person makes an application to be joined as a party to the proceedings).

 

New subsection 127A(6) specifies that TEQSA must notify the carriage service provider, the online search engine provider (if the application seeking the injunction applies to that provider) and the person who operates the online location of the making of an application made under subsection 127A(1). This subsection also provides that the Court may dispense, on such terms as it sees fit, with the notice required to be sent to the person who operates the online location if the Court is satisfied that TEQSA is unable, despite reasonable efforts, to determine the identity or address of the person who operates the online location, or to send notices to that person.

 

New subsection 127A(7) specifies matters that the Court may take into account when considering whether to grant an injunction.

 

New subsection 127A(8) provides that the Court may limit the duration of or, upon application, rescind or vary an injunction granted under section 127A.

 

New subsection 127A(9) provides that an application under subsection 127A(8) may be made by any person referred to in subsection 127A(5) or any other person prescribed by the regulations.

 

New subsection 127A(10) specifies that an application under subsection 127A(8) must not request the Court to vary the injunction so that it applies to an online search engine provider that is covered by a declaration under subsection 127A(11).

 

New subsection 127A(11) provides that the Minister may, by legislative instrument, declare that a particular online search engine provider or an online search engine provider that is a member of a particular class must not be specified in an application under subsection 127A(1) or 127A(8). This instrument is a legislative instrument for the purposes of the Legislation Act 2003 and is subject to the Parliamentary disallowance process.The disallowance process provides Parliamentary oversight and scrutiny over any legislative instrument made by the Minister.

 

New subsection 127A(12) outlines that a carriage service provider or, if applicable, an online search engine provider is not liable for any costs in relation to the proceedings unless the provider enters an appearance and takes part in the proceedings. This will ensure that carriage service providers and online search engine providers will not incur unreasonable costs in preventing the provision or advertising of academic cheating services.

 

Item 27 - Section 128

 

Item 27 inserts “or 127A” after the words “under section 127” in section 128 of the TEQSA Act.

 

Item 28 - Paragraphs 128(a) and (b)

 

Item 28 omits the words “regulated entity” from paragraphs 128(a) and 128(b) of the TEQSA Act and substitutes the word “person”.

 

 

 

Item 29 - Subsection 130(1)

 

Item 29 omits the words “regulated entity” from subsection 130(1) of the TEQSA Act and substitutes the word “person”.

 

Item 30 - Paragraphs 130(1)(a), (b) and (c)

 

Item 30 omits the words “the entity” from paragraphs 130(1)(a), (b) and (c) of the TEQSA Act and substitutes the words “the person”.

 

Item 31 - Subsection 130(2)

 

Item 31 omits the words “regulated entity” from subsection 130(2) of the TEQSA Act and substitutes the word “person”.

 

Item 32 - Paragraphs 130(2)(a), (b) and (c)

 

Item 32 omits the words “the entity” from paragraphs 130(2)(a), (b) and (c) of the TEQSA Act and substitutes the words “the person”.

 

Item 33 - After paragraph 134(1)(d)

 

Item 33 inserts a new paragraph 134(1)(da) into the TEQSA Act, which provides that TEQSA’s functions include protecting and enhancing academic integrity.

 

New subparagraph 134(1)(da)(i) specifies that TEQSA protects and enhances academic integrity by gathering, providing and sharing information, and providing education, in relation to the conduct prohibited by sections 114A and 114B.

 

New subparagraph 134(1)(da)(ii) specifies that TEQSA protects and enhances academic integrity by conducting research relating to academic cheating services.

 

New subparagraph 134(1)(da)(iii) specifies that TEQSA protects and enhances academic integrity by taking action to prevent access to online sources of academic cheating services.

 

Item 34 - Division 2 of Part 10 (heading)

 

Item 34 repeals the existing heading to Division 2 of Part 10 of the TEQSA Act, and substitutes a new heading.

 

Item 35 - Paragraph 188(1)(a)

 

Item 35 repeals existing paragraph 188(1)(a) of the TEQSA Act and substitutes a new paragraph 188(1)(a).

 

Item 36 - Section 197

 

Item 36 omits “(within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 )” from section 197 of the TEQSA Act.

 

 

Item 37 - At the end of Part 10

 

Item 37 inserts a new Division 3 at the end of Part 10 of the TEQSA Act, with a heading titled “Management of academic cheating services information”.

 

New section 197A creates an offence of unauthorised disclosure or use of academic cheating services information.

 

Subsection 197A(1) provides that a person commits an offence if the person obtains academic cheating services information in the person’s capacity as an entrusted person and that person discloses that information to another person or uses the information.

 

The penalty for this offence is imprisonment for 2 years.

 

This subsection ensures that academic cheating services information, which may include person information, is not disclosed or used improperly.

 

Paragraph 197A(2)(a) specifies that subsection 197A(1) does not apply if the disclosure or use is made for the purposes of the TEQSA Act, or the Education Services for Overseas Students Act 2000 , or otherwise is in connection with the performance of the person’s duties as an entrusted person.

 

Paragraph 197A(2)(b) specifies that subsection 197A(1) does not apply if the use or disclosure is authorised by section 197B.

 

A note explains that a defendant bears an evidential burden in relation to a matter in subsection 197A(2) and draws attention to subsection 13.3(3) of the Criminal Code .

 

New section 197B creates authorised disclosures and uses of academic cheating services information.

 

Subsection 197B(1) provides that TEQSA may disclose or use academic cheating services information if the disclosure or use is of information that a person provides, or is reasonably suspected by TEQSA of providing an academic cheating service.

 

This will enable TEQSA to fulfil its new functions in relation to preventing and minimising the use and promotion of academic cheating services. By being able to disclose or use academic cheating services information, TEQSA will be better able to investigate and assist the higher education sector to detect, prevent and address the impact of academic cheating services.

 

Subsection 197B(2) specifies that TEQSA may disclose academic cheating services information to a higher education provider if the disclosure is of information that a person has used, or is reasonably suspected by TEQSA of using, an academic cheating service; and TEQSA knows, or reasonably suspects, that the person is or has been enrolled in a course of study with the higher education provider.

 

This will allow TEQSA to share information that it might come across in the course of its investigations with higher education providers. This could be for the purposes of seeking corroboration of information TEQSA has about the nature of cheating services provided. It could be to seek investigative assistance from an institution based on data provided to TEQSA by another higher education sector stakeholder from their own investigations.

 

Typically, such information might be about cheating service providers that have targeted students at a range of institutions. Alternatively, it could be information about students who have used the services of cheating service providers that have a connection with a particular higher education provider. To safeguard the sharing of personal information relating to users of academic cheating services, TEQSA must reasonably suspect that there is a connection between a service user and an Australian higher education provider before it can disclose information to the institution.

 

Subparagraph 197B(3) provides that TEQSA may disclose academic cheating services information to a regulatory authority of another country if;

·          cooperative arrangements exist with that authority, or country, that relate to the regulation of higher education, and

·          the disclosure is consistent with those arrangements.

 

This will enable TEQSA to fulfil its international obligations and commitments in relation to quality assurance and regulation. This includes agreed sharing of information as part of TEQSA’s international partnerships and memorandums of understanding with overseas counterparts. The restriction on TEQSA’s ability to make disclosures to those overseas regulatory authorities with which it has agreements in place will ensure that academic cheating service information will be appropriately protected from misuse.

 

New section 197C provides that a person may disclose academic cheating services information to TEQSA to assist TEQSA in performing its functions under paragraphs 134(1)(c), (da) and (j). This will enable higher education providers and others in the community, including whistleblowers, to provide intelligence and information to TEQSA relating to academic cheating services without fear of prosecution under information privacy laws. The capacity for TEQSA to collect, analyse, and, with safeguards, share relevant information with higher education providers will be central to its ability to support the higher education sector to counter the proliferation of academic cheating services.

 

New section 197D specifies that section 197B does not apply to national security information.

 




[1] Bretag et al, 2018, ‘Contract cheating: a survey of Australian university students’, Studies in Higher Education, DOI: 10.1080/03075079.2018.1462788.