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Go8 Submission: Tertiary Education Quality and Standards Agency Amendment (Prohibiting Academic Cheating Services) Bill 2019

I am writing on behalf of the Group of Eight (Go8) in relation to the Government’s draft legislation to strengthen regulatory arrangements and build more robust arrangements to safeguard academic integrity in Australia’s university sector.

The Government’s first phase response to recommendations from the Higher Education Standards Panel’s (HESP) work examining commercial cheating in higher education outlined in the Tertiary Education Quality and Standards Agency Amendment (Prohibiting Academic Cheating Services) Bill 2019 (the Bill) are, overall, a positive step.

The Go8 agrees with the HESP that student academic misconduct, be it in the form of plagiarism, ghost writing, cheating in examinations or other forms of academic misconduct represent a significant threat to community confidence in academic standards. Efforts to support community confidence in this regard are crucial. 

While Go8 member universities may each make their own more detailed contributions in respect of the Bill, the Go8 makes the following recommendations:

  • The need for clarification with respect to coverage of overseas students.
  • The proposed penalty provisions should be amended to reflect that both civil and offence provisions can apply where conduct relates to fee-for-service arrangements, while civil penalties only apply to services where no fee is payable. 
  • An additional clarification should be inserted with respect to the exceptions from the conduct under proposed section 114A to reflect the diversity of activities approved by universities.
  • The additional information disclosure provision in proposed section 197A appears unnecessary given the existing scope of the Act in this area.

In making these recommendations, the Go8 views these issues from the perspective of possible unintended consequences or adverse implications that may arise from the manner in which the Bill is drafted. While the Go8 understands and fully appreciates that there remain gaps in coverage underpinning this Bill, we commend the Government for taking this approach in what is a very complex and challenging area

Overseas students

While the Bill does not seek to capture students, the drafting of proposed subsection 8(2) – regarding the coverage of proposed section 114A – covers overseas students pursuant to section 51 (xix) of the Constitution. While the Go8 agrees that a student who engages in academic misconduct should face sanction, the student should face sanction under the rules of the university. The drafting outlined appears to envisage that in a case where an overseas student writes an essay (for example) for a domestic student who then submits that essay, the overseas student could be subject to sanction under the provisions of the Bill, while the domestic student would not be in the reverse circumstance.

It would not be inappropriate for the current drafting to apply where a syndicate of students were engaged in this conduct on a fee-for-service basis (see below) and for overseas students this would have visa-related implications also (note comments on information disclosure). For the hypothetical example offered however, while there could be questions with respect to the carriage service used, the outcome is not feasible for individuals.

The Go8 would seek to engage with the Government to develop a more effective construction to give effect to the Bill’s intent in this respect, while understanding the considerable difficulties in drafting and reaching effective coverage.

Possible amendment to penalty provisions

As noted in our earlier submission (March 2019), the Go8 agrees with Government that a strong legislative solution is warranted. This solution must send the very clear message to organisations and individuals that seek to profit from students who may wish to engage in academic misconduct; serious sanctions will be applied where an offence is proven. At the same time, however, the Go8 recommends that the Bill as drafted may not sufficiently discriminate between types of cheating in a manner that reflects the intent of sector stakeholders (including Government and community more broadly) in this area. The commitment to prevent cheating services that are provided on a fee-for-service basis (including where a fee is a non-monetary fee) must remain the primary aim in eliminating contract cheating from the formal regulatory perspective even where that category of cheating may not be the dominant one.

To that end, the Go8 recommends that the Bill be amended to reflect that the more serious sanctions in the Bill will apply to the more serious contraventions. To achieve this, the Go8 recommends that the proposed offence and civil penalty provisions in proposed subsections 114A (1) and (2) respectively remain the same but that the definition of relevant services under ss114A (3) is amended to clarify that where a service is provided on a fee-for-service basis it may attract more serious sanction. Where a service is provided on a basis other than fee-for-service, however, it would attract a civil penalty only. For example:

  • In respect of services offered or provided on a fee-for-service basis, both the offence and civil provisions in [XX} may be applied.
  • In respect of services offered or provided other than on a fee-for-service basis, the civil penalty provisions in [XX] apply.

This is not to diminish the seriousness of some cheating that may be undertaken on a basis other than fee‑for‑service. However, this could still attract a civil penalty of 1000 penalty units, currently $210,000. That is, a substantial penalty for an individual engaging in cheating activity. A very considerable deterrent which would be consistent with the HESP advice and intent of the Bill.

For more serious cases – where genuine contract services are being engaged – civil and offence provisions would remain available. This approach suggested is also consistent with the approach take in the Bill under section 114B with respect to provisions that seek to prohibit advertising academic cheating services.

  • These provisions seek to apply a robust regulatory mechanism in an area that is, arguably, a greater public focus for those outside the higher education who have a strong interest in quality assurance in this field.

Clarification with respect to exclusions

The Bill includes a note under the Exceptions at subsection 114A (4) that as an example, where a university permits a student with a disability to use a scribe in an examination, this would not be captured within the offences of the Bill as the university would have authorised the provision of that service.

This is a very welcome clarification. The Go8 suggests that it would be very helpful to include in the Explanatory Memorandum to the Bill some very clear and unambiguous statements and examples that expand on this. For example, where official rules or guidance from the university where the student is enrolled allow for the use of external editing services in the process of thesis work for doctoral students.

Intelligence gathering

The Bill includes significant penalty provisions for conduct that clearly prejudices the academic reputation of individual institutions and the Australian higher education sector as a whole, and TEQSA has a responsibility to pursue those activities. There is a question, however, as to the ability of TEQSA to gather intelligence of its own accord on these issues.

The Go8 understands the activities outlined for TEQSA under the Bill are not to be cost-recovered – which is welcome – and that TEQSA is likely to use existing networks to gather intelligence on the nature, extent and instances of cheating that might be captured by the Bill. For TEQSA to be an effective operator with respect to all but the most flagrant commercial cheating services – including those who operate from outside Australia – it appears TEQSA will need to rely largely if not exclusively on information passed to its officers from within universities. The extent to which TEQSA is likely to be the recipient of timely and valuable information that is of a comprehensive and substantial enough nature to enable an investigation or even a prosecution to be pursued are not at all clear. Indeed, the timeliness with which some other some other activities are managed by the higher education regulator, may indicate that prosecution is a less-than realistic possibility.

Disclosure of information

The Bill proposes that TEQSA be granted the power (proposed section 63 (1A) refers) to disclose information or documents obtained from a person in relation to a contravention of either proposed section 114A or section 114B. This is a very broad power and would enable to TEQSA to disclose that information to another Commonwealth agency, for example the Australian Federal Police, the Department of Home Affairs or AUSTRAC for investigation and enforcement purposes. However, section 189 of the TEQSA Act (Breaches of regulatory requirements) appears to already enable TEQSA to do this and it is a power warranted to enable thorough investigation and enforcement of serious breaches.

The proposed additional disclosure power, however, could be viewed as an unnecessary over-reach and duplication of existing powers that overlap with the existing authority afford TEQSA in Division 2 (subdivision B) of Part 10 of the TEQSA Act. These provisions give TEQSA the authority to disclose information referred to (inter alia) to certain people including an office holder of the Commonwealth or a State or Territory or member of the AFP for example and that this relates to information an offence – or possible offence – against the TEQSA Act.

  • An additional authority of disclosure beyond what the TEQSA Act already allows for information of this nature does not appear necessary.

While it might be argued the proposed provision enables TEQSA to inform universities of any cheating conduct that TEQSA learns of through its intelligence gathering work and about which the university may be unaware (noting comments above), it is not entirely clear this is the case.

  • The proposed provision seems to allow TEQSA to disclose a document or information gained through TEQSA investigative processes where TEQSA has required a person who is or was previously connected to a regulated entity (including a university) to give information relating to either the provision and/or the advertising of academic cheating services. The powers don’t appear to extend beyond these people – for example current and former university employees.

If the intent of proposed section 63(1A) of the Bill is to enable TEQSA to disclose information of this nature to universities, the drafting in proposed section 197A could be reframed to reflect that intent.

In addition, the existing disclosure powers in the TEQSA Act enable a very general ability to disclose information. In the context of this Bill, disclosure of information obtained in an investigation of matters canvassed under proposed sections 114A and 114B could be limited to be covered only by existing sections 189, 192 and 194 with a specific exclusion for section 196 (disclosing information to the public).

While it is critical to inform the public about the existence, availability and so on of academic cheating services, it is most important to ensure that the information disclosed is consistent with the intent of the Bill. That is, to disarm and prevent academic cheating services and instances.

To that end, the Go8 recommends that the Government consider how the general public disclosure power in section 196 interacts with the proposed provisions in the Bill.

A change to the Bill in this area and an amendment to the TEQSA Act would still promote the remaining disclosure powers and obligations in Division 2 of Part 10 of the TEQSA Act, which are supported by the Go8. In the context of the current Bill, amendments of this nature would not prevent TEQSA from carrying out the important responsibility of disclosing the fact there had been a contravention of either proposed section 114A or 114B, a thorough investigation and what penalties (if any) had been applied as a result.

Overall the Go8 supports this Bill and proposes only minor amendments to ensure greater effectiveness. On behalf of the Go8, I would like to thank the Government for recognising the real risk that commercial cheating services pose to the reputation of Australia’s world-class university sector.

Yours faithfully,