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2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
TERTIARY EDUCATION QUALITY AND STANDARDS AGENCY
AMENDMENT (PROHIBITING ACADEMIC CHEATING SERVICES)
BILL 2019
ADDENDUM TO THE 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
This Addendum responds to concerns raised by the Parliamentary Joint
Committee on Human Rights in Scrutiny Report 1 of 2020 (dated 5 February
2020) and Scrutiny Report 4 of 2020 (dated 9 April 2020); the Senate Standing
Committee for the Scrutiny of Bills in Scrutiny Digest 1 of 2020 (dated 5 February
2020); and other stakeholders.
Statement of Compatibility with Human rights
Replace the paragraph under the heading 'Analysis of human rights implications'
on page 6 with:
The Bill engages the following human rights:
the right to education - Article 13 of the International Covenant on
Economic, Social and Cultural Rights (ICESCR);
the right to privacy and reputation - Article 17 of the International
Covenant on Civil and Political Rights (ICCPR);
the right to freedom of expression in Article 19 of the ICCPR; and
the right to be presumed innocent and right to a fair trial under
Articles 14 and 15 of the ICCPR.
At the end of the section 'Right to Freedom of Expression' on page 8, insert the
following paragraphs:
Limitation on advertising
The Bill prohibits the advertising of cheating services in Australia. Article
19(2) provides that everyone shall have the right to freedom of
expression, including the right to seek, receive and impart information
orally or through a range of media. Article 19(3) (and Article 10(2) of the
European Convention on Human Rights (ECHR)), however, explicitly
states that the exercise of the right to freedom of expression carries with it
special duties and responsibilities. Accordingly, the exercise of this right
may be subject to restrictions as provided by law including where
necessary for the protection of public order and reputation.
The protection of public order relevantly extends to 'the sum of rules
which ensure the functioning of society or the set of fundamental
principles on which society is founded'1 and to 'permitting regulation in the
1
Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant
on Civil and Political Rights Annex, UN Doc E/CN.4/1984/4 (1984)
2
interests of legitimate public purposes' provided such a power is exercised
consistently with human rights2. To that end, the protection of public order
includes necessary and proportionate restrictions on the promotion of
unlawful activities. This would relevantly include the prohibition of
advertising by academic cheating services, where the provision of such
services is a criminal offence.
Whether a restriction is proportionate is based on the principles governing
a democratic society. In order to prove that interference is "necessary in a
democratic society", States Parties must be satisfied that a "pressing
social need" exists, requiring that a particular limitation on the exercise of
freedom of expression (in this case, a prohibition on a certain types of
advertising) be imposed. There is clear empirical evidence that the
advertising of cheating services to students has become pervasive
through on-campus advertising, email and social media. As such, the
restriction on advertising is a necessary and proportionate response to the
pressing social need to curtail this deleterious activity by academic
cheating services. The prohibition on this type of advertising protects the
market economy from a proliferation of such services by reducing their
profile and market visibility and, in turn, removes the opportunity for
students to easily seek out these services.
Further, although protected by Article 19, commercial expression (of
which advertising is a sub-set) is subject to different standards of control
than other types of expression. In decided cases, the European Court has
recognised that member states have a wide margin of appreciation in
respect of banning certain types of advertisements finding that, having
regard to countervailing interests, interference with the exercise of
commercial expression was compatible with the requirements of the
equivalent Article 10(2) of the ECHR. In principle, consumer rights are
effectively undermined by affording leeway for advertisers to deceive or
mislead when it comes to describing the characteristics of their
commodities or services.
The prohibition on advertising by academic cheating falls within the
exemption prescribed by Article 19(3) as the limitations it prescribes on
freedom of expression are provided for by law, and are necessary and
proportionate to the risk to the reputation of the higher education sector in
Australia and the integrity of the delivery of academic courses posed by
inaccurate or misleading advertising which directly promotes academic
misconduct.
Injunctions and the right to receive information
The Bill also gives the Federal Court the power to block a person's ability
to receive information from academic cheating services through
2
See for example, Lockwood, Finn and Lubinsky, "Working Paper on Limitation Provisions", (1985) 7
Human Rights Quarterly 35, at 59
injunctions. The prospective exercise of the court's power to block access
to online locations through the granting of an injunction is subject to the
rigours of judicial process and scrutiny. The exercise of this power by
courts is predicated on strict legal conditions being satisfied as well as
subject to a substantial body of equitable principles and specific statutory
provisions governing the nature and parameters of such orders. The
power to grant an injunction to block pernicious advertising by cheating
services, if considered by a court to be an appropriate remedy having
regard to all the facts and circumstances, is rationally connected to the
achievement of a legitimate objective. This is reasonably necessary to
protect the interests of students and tertiary institutions, and thereby the
operational integrity and reputational credibility of academic services in
Australia.
After the section 'Right to Freedom of Expression' on page 8, insert the following
paragraphs:
Compatibility with criminal process rights
The civil penalties contained in the Bill are compatible with the criminal
process rights outlined in Articles 14 and 15 of the ICCPR. This includes
the right to the presumption of innocence, and the right to a fair trial.
However, the civil penalty provisions are not considered 'criminal' for the
purposes of international human rights law due to the nature and purpose
of the penalties. Although the main purpose of the penalties is deterrence,
the penalties do not apply to the public in general. The civil penalty
provisions are strictly confined to a specific regulatory or disciplinary
context, namely providers of cheating services within the higher education
sector.
The amount of the pecuniary penalty that may be imposed under the Bill
is not punitive having regard to the nature of the industry sought to be
regulated (namely, providers and advertisers of higher education cheating
services) and having regard to the relative size of the civil pecuniary
penalties that may be imposed in comparable corporate settings.
Schedule 1 - Amendments
Detailed explanation
Item 10 - New sections 114A and 114B
After Example 7 on page 16, insert the following paragraphs:
Example 8: George has recently completed an accounting degree, and
had created detailed study notes for himself for each of his accounting
subjects during the course of his degree, to help him study for exams.
George decides to sell copies of his study notes to some of the current
accounting students at the university he attended, to help them with
studying for similar exams. Although the students use the study notes to
4
help them study, the students personally undertake their exams and do not
use the study notes as a substantial part of any assessment task. As
George has not provided a substantial part of any of the current student's
assessment tasks, he has not committed an offence or contravened the
civil penalty provision under section 114A.
Example 9: Alex is a final year arts/history student, and has attained very
high marks on all of his essays during the initial years of his degree. He
decides to publish his old essays on a file-sharing website, to be used as
exemplars for other students, and is paid a small fee for publishing these
assignments. Chloe purchases one of Alex's essays as a guide to assist
her with understanding the kind of research and quality of work required to
obtain a high mark for an art history essay. Chloe completes her
assessment task personally. As Alex has provided an example of a
previous essay, and has not provided a substantial part of Chloe's
assessment task, he has not committed an offence or contravened the civil
penalty provision under section 114A.
Example 10: As in the previous example, Alex publishes his old essays on
a file-sharing website and is paid a small fee for publishing these
assignments. Zane purchases one of Alex's essays and uses a significant
amount of its content to form a substantial part of his own new assessment
task. In this case, Alex undertook to create his original essay for his own
assessment task and not for Zane's assessment task, Alex has not
committed an offence or contravened the civil penalty provision under
section 114A.
After the last paragraph on page 17, insert the following paragraphs:
Chapter 2 of the Commonwealth Criminal Code Act 1995 (Criminal Code)
entitled 'General Principles of Criminal Responsibility' contains general
principles of criminal responsibility that apply to offences. These principles
apply to offences under this Bill. The Criminal Code provides that offences
have physical elements, for example doing or not doing an action
(conduct), and fault elements, such as intention, knowledge, recklessness
or negligence.
The Criminal Code imports fault elements into offences in Commonwealth
legislation, where legislation does not specify a fault element. In this case,
the offence at subsection 114B(1) does not specify a fault element,
therefore the Criminal Code imports an automatic fault element of
'recklessness' for the physical element of the offence that consists of a
'circumstance'. This means that in order for a person to commit an offence
under subsection 114B(1), in addition to satisfying the other elements of
the offence, the person would need to have been reckless to the possibility
that the academic cheating service had a commercial purpose.
Under the Criminal Code, recklessness can be established by proving
intention, knowledge or recklessness. This is particularly relevant to the
possibility of a person inadvertently promoting or advertising an academic
cheating service online. The intent of this Bill is not to prosecute those that
inadvertently promote a cheating service, for example, on social media
where there is no proof of intention, knowledge or recklessness.
Example: Lily is a first year university student who has recently received
an advertisement via a social media platform for an 'academic assistance
service'. Lily does not realise that this is actually an advertisement for an
illegal academic cheating service, and shares the advertisement with some
of her friends on social media. Lily has not committed an offence under
subsection 114B(1), as she did not have any intention to promote, nor did
she have knowledge, or was reckless to the fact she was inadvertently
promoting a cheating service.
Item 26 - After section 127
Before the last paragraph in Item 26 on page 22 (beginning with the words: 'New
subsection 127A(12) outlines that a carriage service provider ... '), insert the
following paragraphs:
Considering the serious and prohibitory nature of these injunctions, it is
necessary and appropriate that certain online search engine providers are
exempted from the application of injunctions. The intent of these injunctions
is to target major online search engine providers that index search results
on the World Wide Web and are likely conduits to online locations that host
information about cheating services. These injunctions are not intended to
capture smaller search engine providers that do not have the same reach.
These may include entities that offer third-party internal (e.g. intranet)
search functions; entities that provide search services to employees,
members or clients that are confined to discrete sites (such as educational
and cultural institutions, not-for-profit organisations); or entities that provide
search functionality that is limited to their own sites or to particular content
or material. As such, exemptions, where necessary, will provide a 'safety
net' to ensure that applications for injunctions do not unfairly target smaller
search engine providers that do not have the same reach or entities that
provide only internal (intranet) or limited search functions.
It is appropriate that such exceptions are made by the Minister in a
legislative instrument made under subsection 127A(11) to enable the
Minister to flexibly respond to an evolving online environment and ensure
exemptions are appropriately targeted.
6
Item 37 - At the end of Part 10
After the sentence on page 24 (beginning with the words: 'A note explains that a
defendant bears an evidential burden ... '), insert the following paragraphs:
It is appropriate to reverse the evidential burden of proof for the offence in
new section 197A because it meets the criteria set out in section 4.3.1 of
the Guide. More specifically, it is peculiarly within the knowledge of the
defendant whether they disclosed or used academic cheating services
information obtained in their capacity as an entrusted person for the
purposes of the TEQSA Act or the Education Services for Overseas
Students Act 2000. Without this reversal of the evidential burden it would
be forensically difficult and expensive for the prosecution to disprove that
an allowable purpose existed, whereas proof that an allowable purpose did
exist could be more readily provided by the defendant. Notably, the burden
that section 197A imposes on a defendant is an evidential burden only (not
a legal burden) and does not displace the prosecutor's burden in proving
the elements of the offence.
As the reversal of the evidential burden of proof in section 197A meets the
criteria set out in the Guide, it is appropriate to use an offence-specific
defence in this instance. An evidential burden placed on the defendant is
not uncommon and exists in many other pieces of Commonwealth
legislation. It is also consistent with the existing offence provision under
subsection 188(2) of the TEQSA Act, which also reverses the evidential
burden of proof. In these circumstances, the imposition of an evidential
burden on the defendant is reasonable and proportionate and does not limit
the right to be presumed innocent or the right to a fair trial in the context of
an offence provision.
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