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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,
2
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
3
will apply to unpaid cheating services. Research1 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.
1
Bretag et al, 2018, 'Contract cheating: a survey of Australian university students', Studies in Higher
Education, DOI: 10.1080/03075079.2018.1462788.
4
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.
5
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.
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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.
7
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.
8
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
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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:
10
(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
11
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.
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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-
13
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
14
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
15
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
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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.
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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
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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".
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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.
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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).
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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".
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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.
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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
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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.
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