Title Tertiary Education Quality and Standards Agency Amendment (Prohibiting Academic Cheating Services) Bill 2019
Database Bills Digests
Date 13-02-2020
Source Bills Digest Service
Parl No. 46
Author FERGUSON, Hazel
Citation Id 7182391
Key item Yes
Major subject Fraud
Plagiarism
Tertiary education
Tertiary Education Quality and Standards Agency
Educational assessment
Minor subject Australia overseas comparisons
Bills
Legislative amendments
Punishment
Advertising
Pages 18p., bibl.
Volume no. 084 (2019-20)
System Id legislation/billsdgs/7182391


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

ISSN 1328-8091

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BILLS DIGEST NO. 84, 2019–20 13 FEBRUARY 2020

Tertiary Education Quality and Standards Agency Amendment (Prohibiting Academic Cheating Services) Bill 2019 Dr Hazel Ferguson Social Policy Section

Contents

Purpose of the Bill ........................................................... 3

Background ..................................................................... 3

The rise of academic cheating services ....................... 3

Prevalence of academic cheating ............................... 4

Current arrangements for addressing academic cheating in Australia .................................................... 5

The role of legislation .................................................. 6

Committee consideration ................................................ 7

Senate Selection of Bills Committee ........................... 7

Senate Standing Committee for the Scrutiny of Bills .............................................................................. 7

Positions of non-government parties/independents and major interest groups ............................................... 8

Non-government parties/independents ..................... 8 Major interest groups ................................................. 9

Financial implications .................................................... 10

Statement of Compatibility with Human Rights.............. 10

Parliamentary Joint Committee on Human Rights ... 10 Key issues and provisions .............................................. 10

TEQSA’s role .............................................................. 10

Academic cheating offence provisions ..................... 11 Definition of key terms ............................................ 12

Construction of criminal offences (114A(1) and 114B(1)) ................................................................... 12

Construction of civil penalties (114A(3) & 114B(2)) ................................................................... 13

Constitutional basis ................................................... 13

Injunctions relating to online locations .................... 15

Date introduced: 4 December 2019

House: House of Representatives

Portfolio: Education

Commencement: The day after the Act receives Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at February 2020.

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Tertiary Education Quality and Standards Agency Amendment (Prohibiting Academic Cheating Services) Bill 2019 2

Information provision and disclosure ....................... 16

Concluding comments ................................................... 18

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Tertiary Education Quality and Standards Agency Amendment (Prohibiting Academic Cheating Services) Bill 2019 3

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

1. Tertiary Education Quality and Standards Agency (TEQSA), TEQSA website. 2. Higher Education Standards Panel (HESP), Student academic integrity and cheating in Australian higher education: consideration by the Higher Education Standards Panel, HESP, March 2017; Australian Government, More support for academic integrity in higher education: Australian Government response to recommendations of the Higher Education

Standards Panel, 18 December 2018. 3. T Bretag, S Mahmud, M Wallace, R Walker, C James, M Green, J East, U McGowan and L Partridge, ‘Core elements of exemplary academic integrity policy in Australian higher education’, International Journal for Educational Integrity, 7(2), 2011,

p. 2.

4. TEQSA, Report on student academic integrity and allegations of contract cheating by university students, TEQSA, Canberra, March 2015. 5. L Visentin, ‘Those buying assignments could be charged with fraud’, The Sydney Morning Herald, 12 November 2014, p. 7. 6. TEQSA, Report on student academic integrity and allegations of contract cheating by university students, op. cit. 7. Ibid.

8. These were the Higher Education Standards Framework (Threshold Standards) 2011, now replaced by the Higher Education Standards Framework (Threshold Standards) 2015.

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Tertiary Education Quality and Standards Agency Amendment (Prohibiting Academic Cheating Services) Bill 2019 4

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

9. HESP, Student academic integrity and cheating in Australian higher education: consideration by the Higher Education Standards Panel, op. cit. 10. Ibid.

11. Australian Government, Budget measures: budget paper no. 2: 2018–19, p. 95. 12. Australian Government, More support for academic integrity in higher education: Australian Government response to recommendations of the Higher Education Standards Panel, op. cit. 13. TEQSA, Good practice note: addressing contract cheating to safeguard academic integrity, TEQSA, Canberra, October 2017. 14. T Bretag, R Harper, M Burton, C Ellis, P Newton, P Rozenberg, S Saddiqui and K van Haeringen, ‘Contract cheating: a survey of

Australian university students’, Studies in Higher Education, 44(11), 2019, pp. 1837–1856. 15. Ibid.

16. Ibid.

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Tertiary Education Quality and Standards Agency Amendment (Prohibiting Academic Cheating Services) Bill 2019 5

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.

17. PM Newton, ‘How common is commercial contract cheating in higher education and is it increasing? A systematic review’, Frontiers in Education, 3, 2018, article 67. 18. Ibid.

19. Bretag et al., ‘Contract cheating: a survey of Australian university students’, Studies in Higher Education, op. cit. 20. TEQSA, Good practice note: addressing contract cheating to safeguard academic integrity, op. cit., pp. 4–5. 21. A Steel, ‘Contract cheating: will students pay for serious criminal consequences?’, Alternative Law Journal, 42(2), 2017, pp. 123–129.

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Tertiary Education Quality and Standards Agency Amendment (Prohibiting Academic Cheating Services) Bill 2019 6

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

22. TEQSA, Report on student academic integrity and allegations of contract cheating by university students, op. cit., p. 2. 23. TEQSA, Good practice note: Addressing contract cheating to safeguard academic integrity, op. cit., pp. 20–29. 24. Bretag et al., ‘Contract cheating: a survey of Australian university students’, Studies in Higher Education, op. cit. 25. Ibid.

26. Tertiary Education Quality and Standards Agency Act 2011 (the TEQSA Act), section 134. See TEQSA, Report on student academic integrity and allegations of contract cheating by university students, op. cit.; TEQSA, Good practice note: addressing contract cheating to safeguard academic integrity, op. cit.; TEQSA, Guidance note: academic integrity, TEQSA, Canberra, 28 March 2019.

27. TEQSA, Good practice note: addressing contract cheating to safeguard academic integrity, op. cit.

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Tertiary Education Quality and Standards Agency Amendment (Prohibiting Academic Cheating Services) Bill 2019 7

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:

28. HESP, Student academic integrity and cheating in Australian higher education: consideration by the Higher Education Standards Panel, op. cit., p. 1. 29. M Draper and P Newton, ‘A legal approach to tackling contract cheating?’, International Journal for Educational Integrity, 13(11), 2017. 30. D Dickerson, ‘Facilitated plagiarism: the saga of term-paper mills and the failure of legislation and litigation to control them’,

Villanova Law Review, 52(1), 2007, pp. 21–66. 31. A Amigud and P Dawson, ‘The law and the outlaw: is legal prohibition a viable solution to the contract cheating problem?’, Assessment and Evaluation in Higher Education, 45(1), 2020, pp. 98–108. 32. Ibid., p. 104. 33. Ibid., p. 100. 34. J Hare, ‘Letter from Australia: paying the price for cheating’, WonkHE, 10 April 2019. 35. Senate Standing Committee for Selection of Bills, Report, 1, 2020, The Senate, Canberra, 6 February 2020.

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Tertiary Education Quality and Standards Agency Amendment (Prohibiting Academic Cheating Services) Bill 2019 8

• 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

36. Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest, 1, 2020, The Senate, Canberra, 5 February 2020, pp. 31-33. 37. Department of Education, Skills and Employment (DESE), ‘Tackling contract cheating’, DESE website. 38. Ibid.

39. Ibid.

40. Hare, ‘Letter from Australia: paying the price for cheating’, op. cit. 41. M Faruqi, Submission to Department of Education (DoE) consultation, Draft legislation to tackle contract cheating, 28 June 2019.

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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

42. Ibid.

43. Group of Eight, Submission to DoE consultation, Draft legislation to tackle contract cheating, 28 June 2019, p. 3. 44. Universities Australia (UA), Submission to DoE consultation, Draft legislation to tackle contract cheating, 28 June 2019, p. 2. 45. UA, Universities back outlawing contract cheating, media release, 4 December 2019.

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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:

46. T Bretag, Submission to DoE consultation, Draft legislation to tackle contract cheating, 27 June 2019, p. 2. 47. Explanatory Memorandum, Tertiary Education Quality and Standards Agency Amendment (Prohibiting Academic Cheating Services) Bill 2019, p. 5. 48. The Statement of Compatibility with Human Rights can be found at page 6 of the Explanatory Memorandum to the Bill. 49. Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 1, 2020, 5 February 2020, pp. 56–63. 50. Ibid., pp. 62–63.

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• 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.

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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

51. Penalties are expressed in penalty units to facilitate adjustment across the Act from time to time. A penalty unit is currently equal to $210.00, according to the Commonwealth Crimes Act 1914, section 4AA. Subsection 4B(3) of the Crimes Act provides that where a body corporate is convicted of a Commonwealth offence, the maximum pecuniary penalty that a court may impose is five times the maximum penalty that could be imposed on an individual for the same offence. This means that a corporation convicted under subsections 114A(1) or 114B(1) is subject to a maximum penalty of 2,500 penalty units, which is currently equal to $525,000.

52. Section 2.2 of the Criminal Code; S Odgers, Principles of federal criminal law, 2nd edn, Lawbook Co., Sydney, 2010, p. 1. 53. Section 5.6 of the Criminal Code.

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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:

54. Section 5.6 of the Criminal Code. 55. See also page 14 of the Explanatory Memorandum for in depth discussion on the use of strict liability in constructing this offence. 56. Subdivision C of Division 2 of Part 7 of the TEQSA Act sets out the interaction of criminal offences and civil penalties in that

Act. Broadly, it provides that: a court must not make a civil penalty order against a person who has been convicted of an offence constituted by the same conduct (section 121); civil penalty proceedings against a person are stayed during criminal proceedings for an offence constituted by the same conduct and if the person is convicted of the offence, the civil penalty proceedings are dismissed (section 122); criminal proceedings may be started against a person for conduct that is substantially the same as conduct constituting a civil penalty provision, regardless of whether a civil penalty order has been made against the person (section 123); and evidence given in proceedings for a civil penalty is generally not admissible in criminal proceedings for an offence constituted by substantially the same conduct (section 124). 57. Section 140 of the Evidence Act 1995. 58. ASIC v Whitebox [2017] FCAFC 100, where the Court held that civil penalty provisions did not engage Chapter 2 of the Criminal

Code and therefore have no requirement of proof of fault elements. 59. DESE, ‘Commonwealth Grant Scheme (CGS)’, DESE website; DESE, ‘HELP loans’, Study Assist website.

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• 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)

60. The courts have confirmed that universities are ‘trading corporations’. See discussion in J Squelch, ‘The legal framework of higher education’, in S Varnham, P Kamvounias and J Squelch, eds, Higher education and the law, The Federation Press, Annandale, 2015, p. 5.

61. The issue was raised during the Senate Committee hearings into the establishment of TEQSA. See G Craven, Evidence to Senate Employment and Workplace Relations Legislation Committee, Inquiry into Tertiary Education Quality and Standards Agency Bill 2011, 19 April 2011, pp. 6–7.

62. HESP, Student academic integrity and cheating in Australian higher education: consideration by the Higher Education Standards Panel, op. cit., p. 1. 63. Ibid., p. 3. 64. Australian Government, More support for academic integrity in higher education: Australian Government response to

recommendations of the Higher Education Standards Panel, op. cit., p. 1. 65. Explanatory Memorandum, Tertiary Education Quality and Standards Agency Amendment (Prohibiting Academic Cheating Services) Bill 2019, p. 12.

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Tertiary Education Quality and Standards Agency Amendment (Prohibiting Academic Cheating Services) Bill 2019 15

• 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.

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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 notice66

• 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.

66. The notice requirements are set out at proposed subsection 127A(6). 67. Proposed subsection 127A(8). 68. Proposed subsection 127A(9). Under proposed subsection 127A(5), the parties are TEQSA, the carriage service provider, the online search engine provider (if applicable), and the person who operates the online location, if that person makes an

application to be joined as a party to the proceedings.

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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.

69. The definition of entrusted person is currently at section 188, and is inserted to the dictionary at section 5 by item 3. 70. Item 3 inserts a definition of academic cheating services information into the dictionary at section 5. According to this definition, academic cheating services information means information that: (a) was obtained under, or for the purposes of, the TEQSA Act; (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.

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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.

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