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This is a Bill, not an Act. For current law, see the Acts databases.
2019
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Tertiary Education Quality and
Standards Agency Amendment
(Prohibiting Academic Cheating
Services) Bill 2019
No. , 2019
(Education)
A Bill for an Act to amend the
Tertiary Education
Quality and Standards Agency Act 2011
, and for
related purposes
No. , 2019
Tertiary Education Quality and Standards Agency Amendment
(Prohibiting Academic Cheating Services) Bill 2019
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments
3
Tertiary Education Quality and Standards Agency Act 2011
3
No. , 2019
Tertiary Education Quality and Standards Agency Amendment
(Prohibiting Academic Cheating Services) Bill 2019
1
A Bill for an Act to amend the
Tertiary Education
1
Quality and Standards Agency Act 2011
, and for
2
related purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act is the
Tertiary Education Quality and Standards Agency
6
Amendment (Prohibiting Academic Cheating Services) Act 2019
.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
column 2 of the table. Any other statement in column 2 has effect
11
according to its terms.
12
2
Tertiary Education Quality and Standards Agency Amendment
(Prohibiting Academic Cheating Services) Bill 2019
No. , 2019
1
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
2
enacted. It will not be amended to deal with any later amendments of
3
this Act.
4
(2) Any information in column 3 of the table is not part of this Act.
5
Information may be inserted in this column, or information in it
6
may be edited, in any published version of this Act.
7
3 Schedules
8
Legislation that is specified in a Schedule to this Act is amended or
9
repealed as set out in the applicable items in the Schedule
10
concerned, and any other item in a Schedule to this Act has effect
11
according to its terms.
12
Amendments
Schedule 1
No. , 2019
Tertiary Education Quality and Standards Agency Amendment
(Prohibiting Academic Cheating Services) Bill 2019
3
Schedule 1--Amendments
1
2
Tertiary Education Quality and Standards Agency Act 2011
3
1 At the end of section 3
4
Add:
5
; and (g) to protect and enhance the academic integrity of courses
6
provided by higher education providers by prohibiting
7
academic cheating services.
8
2 At the end of section 4
9
Add:
10
•
TEQSA has a role in preventing and minimising the use and
11
promotion of academic cheating services in courses provided
12
by higher education providers.
13
3 Section 5
14
Insert:
15
academic cheating service
means the provision of work to or the
16
undertaking of work for students, in circumstances where the work:
17
(a) is, or forms a substantial part of, an assessment task that
18
students are required to personally undertake; or
19
(b) could reasonably be regarded as being, or forming a
20
substantial part of, an assessment task that students are
21
required to personally undertake.
22
academic cheating services information
means information that:
23
(a) was obtained under, or for the purposes of, this Act; and
24
(b) relates to the use or provision of an academic cheating
25
service by a person; and
26
(c) identifies, or is reasonably capable of being used to identify,
27
the person.
28
Schedule 1
Amendments
4
Tertiary Education Quality and Standards Agency Amendment
(Prohibiting Academic Cheating Services) Bill 2019
No. , 2019
assessment task
means an assignment, essay, examination,
1
practicum, presentation, project or any other assessable part of a
2
course of study, whether mandatory or optional.
3
carriage service provider
has the same meaning as in the
4
Telecommunications Act 1997
.
5
commercial purpose
means a purpose relating to the derivation of
6
financial gain or reward.
7
entrusted person
means a person who is or was any of the
8
following:
9
(a) a Commissioner;
10
(b) a Panel member;
11
(c) the Chief Executive Officer;
12
(d) a member of the staff of TEQSA;
13
(e) a person performing a service for TEQSA.
14
national security
has the same meaning as in the
National Security
15
Information (Criminal and Civil Proceedings) Act 2004
.
16
national security information
has the same meaning as in the
17
National Security Information (Criminal and Civil Proceedings)
18
Act 2004
.
19
4 Division 4 of Part 1 (heading)
20
Repeal the heading, substitute:
21
Division 4--Act excludes State and Territory higher
22
education laws
23
5 Section 8
24
Repeal the section.
25
6 Section 63 (heading)
26
Repeal the heading, substitute:
27
Amendments
Schedule 1
No. , 2019
Tertiary Education Quality and Standards Agency Amendment
(Prohibiting Academic Cheating Services) Bill 2019
5
63 Requiring certain persons to give information etc.
1
7 After subsection 63(1)
2
Insert:
3
(1A) This section also applies to a person if TEQSA believes on
4
reasonable grounds that the person is capable of giving or
5
producing information, or a document or a thing, relating to a
6
matter that constitutes, or may constitute, a contravention of
7
section 114A or 114B.
8
8 Paragraphs 63(4)(b) and (c)
9
Omit "(within the meaning of the
National Security Information
10
(Criminal and Civil Proceedings) Act 2004
)".
11
9 At the end of section 63
12
Add:
13
(5) Subsection (1A) does not apply to:
14
(a) a lawyer who is acting, or has acted, for a person who is
15
suspected of contravening, or has contravened, section 114A
16
or 114B; or
17
(b) national security information; or
18
(c) documents or things relating to national security.
19
10 At the end of Subdivision A of Division 2 of Part 7
20
Add:
21
114A Prohibition on providing etc. academic cheating services
22
Providing etc. an academic cheating service for a commercial
23
purpose
24
(1) A person commits an offence if the person provides, offers to
25
provide or arranges for a third person to provide an academic
26
cheating service:
27
(a) to a student undertaking, with a higher education provider:
28
(i) an Australian course of study; or
29
Schedule 1
Amendments
6
Tertiary Education Quality and Standards Agency Amendment
(Prohibiting Academic Cheating Services) Bill 2019
No. , 2019
(ii) an overseas course of study provided at Australian
1
premises; and
2
(b) for a commercial purpose.
3
Penalty: 2 years imprisonment or 500 penalty units, or both.
4
(2) Strict liability applies to:
5
(a) paragraph (1)(a); and
6
(b) the physical element of circumstance in paragraphs (a) and
7
(b) of the definition of
academic cheating service
in
8
section 5.
9
Providing etc. an academic cheating service
10
(3) A person contravenes this subsection if the person provides, offers
11
to provide or arranges for a third person to provide an academic
12
cheating service to a student undertaking, with a higher education
13
provider:
14
(a) an Australian course of study; or
15
(b) an overseas course of study provided at Australian premises.
16
Civil penalty:
500 penalty units.
17
Generally not necessary to prove provision etc. of an academic
18
cheating service to a particular student
19
(4) In proceedings for a contravention of subsection (1) or (3), it is not
20
necessary to prove that the person provided, offered to provide or
21
arranged for a third person to provide an academic cheating service
22
to a particular student.
23
(5) Subsection (4) does not apply in relation to proceedings for a
24
contravention of subsection (1) or (3) (as that provision is given
25
effect by paragraph 114C(4)(c)) if the student referred to in that
26
subsection is an alien (within the meaning of paragraph 51(xix) of
27
the Constitution).
28
114B Prohibition on advertising academic cheating services
29
(1) A person commits an offence if:
30
Amendments
Schedule 1
No. , 2019
Tertiary Education Quality and Standards Agency Amendment
(Prohibiting Academic Cheating Services) Bill 2019
7
(a) the person advertises, or publishes or broadcasts an
1
advertisement for, an academic cheating service to students
2
undertaking, with a higher education provider:
3
(i) an Australian course of study; or
4
(ii) an overseas course of study provided at Australian
5
premises; and
6
(b) either:
7
(i) the person does so for a commercial purpose; or
8
(ii) the academic cheating service has a commercial
9
purpose.
10
Penalty: 2 years imprisonment or 500 penalty units, or both.
11
(2) A person contravenes this subsection if the person advertises, or
12
publishes or broadcasts an advertisement for, an academic cheating
13
service to students undertaking
,
with a higher education provider:
14
(a) an Australian course of study; or
15
(b) an overseas course of study provided at Australian premises.
16
Civil penalty:
500 penalty units.
17
114C Additional operation of sections 114A and 114B
18
(1) In addition to the effect they have in relation to higher education
19
providers, sections 114A and 114B also have effect as provided by
20
this section.
21
Note:
For the meaning of
higher education provider
, see section 5.
22
Section 114A--trade and commerce
23
(2) Section 114A also has the effect it would have as if:
24
(a) each reference to providing an academic cheating service
25
were expressly confined to a service that is, or is to be,
26
provided in the course of trade and commerce to which
27
paragraph 51(i) of the Constitution applies; or
28
(b) each reference to an offer to provide, or to an arrangement to
29
provide, an academic cheating service were expressly
30
confined to an offer or arrangement made in the course of
31
trade and commerce to which paragraph 51(i) of the
32
Constitution applies.
33
Schedule 1
Amendments
8
Tertiary Education Quality and Standards Agency Amendment
(Prohibiting Academic Cheating Services) Bill 2019
No. , 2019
Section 114A--communications
1
(3) Section 114A also has the effect it would have as if:
2
(a) each reference to providing an academic cheating service
3
were expressly confined to a service that is, or is to be,
4
provided by means of a service to which paragraph 51(v) of
5
the Constitution applies; or
6
(b) each reference to an offer to provide, or to an arrangement to
7
provide, an academic cheating service were expressly
8
confined to an offer or arrangement made by means of a
9
service to which paragraph 51(v) of the Constitution applies.
10
Section 114A--aliens
11
(4) Section 114A also has the effect it would have as if:
12
(a) each reference to a person who provides, offers to provide or
13
arranges for a third person to provide an academic cheating
14
service were expressly confined to a person who is an alien
15
(within the meaning of paragraph 51(xix) of the
16
Constitution); or
17
(b) each reference to a third person in respect of whom an
18
arrangement is made were expressly confined to a person
19
who is an alien (within the meaning of paragraph 51(xix) of
20
the Constitution); or
21
(c) each reference to a student were expressly confined to a
22
person who is an alien (within the meaning of
23
paragraph 51(xix) of the Constitution).
24
Sections 114A--constitutional corporations (other than higher
25
education providers)
26
(5) Section 114A also has the effect it would have as if:
27
(a) each reference to a person who provides, offers to provide or
28
arranges for a third person to provide an academic cheating
29
service were expressly confined to a constitutional
30
corporation; or
31
(b) each reference to a third person in respect of whom an
32
arrangement is made were expressly confined to a
33
constitutional corporation.
34
Amendments
Schedule 1
No. , 2019
Tertiary Education Quality and Standards Agency Amendment
(Prohibiting Academic Cheating Services) Bill 2019
9
Section 114B--trade and commerce
1
(6) Section 114B also has the effect it would have as if:
2
(a) each reference to advertising, or publishing or broadcasting
3
an advertisement for, an academic cheating service were
4
expressly confined to a service that is, or is to be, provided in
5
the course of trade and commerce to which paragraph 51(i)
6
of the Constitution applies; or
7
(b) each reference to advertising, or publishing or broadcasting
8
an advertisement for, an academic cheating service were
9
expressly confined to advertising, publishing or broadcasting
10
in the course of trade and commerce to which paragraph 51(i)
11
of the Constitution applies.
12
Section 114B--communications
13
(7) Section 114B also has the effect it would have as if:
14
(a) each reference to advertising, or publishing or broadcasting
15
an advertisement for, an academic cheating service were
16
expressly confined to a service that is, or is to be, provided
17
by means of a service to which paragraph 51(v) of the
18
Constitution applies; or
19
(b) each reference to advertising, or publishing or broadcasting
20
an advertisement for, an academic cheating service were
21
expressly confined to advertising, publishing or broadcasting
22
by means of a service to which paragraph 51(v) of the
23
Constitution applies.
24
Section 114B--aliens
25
(8) Section 114B also has the effect it would have as if each reference
26
to a person who advertises, or publishes or broadcasts an
27
advertisement for, an academic cheating service were expressly
28
confined to a person who is an alien (within the meaning of
29
paragraph 51(xix) of the Constitution).
30
Section 114B--constitutional corporations
31
(9) Section 114B also has the effect it would have as if each reference
32
to a person who advertises, or publishes or broadcasts an
33
Schedule 1
Amendments
10
Tertiary Education Quality and Standards Agency Amendment
(Prohibiting Academic Cheating Services) Bill 2019
No. , 2019
advertisement for, an academic cheating service were expressly
1
confined to a constitutional corporation.
2
11 Subsection 115(2)
3
Omit "(but not exceeding the amount specified for the provision)".
4
12 After subsection 115(2)
5
Insert:
6
(2A) Subject to subsection (2B), in determining a pecuniary penalty for
7
the purposes of subsection (2), the Court must not determine a
8
penalty exceeding the pecuniary penalty specified for the civil
9
penalty provision.
10
(2B) If a court is satisfied that a body corporate has contravened
11
subsection 114A(3) or 114B(2) (which deal with academic
12
cheating services), the Court may determine a pecuniary penalty
13
not exceeding an amount equal to 5 times the pecuniary penalty
14
specified for the civil penalty provision.
15
Note:
If a body corporate is convicted of an offence against
16
subsection 114A(1) or 114B(1), subsection 4B(3) of the
Crimes Act
17
1914
allows a court to impose a fine of up to 5 times the penalty set
18
out in the relevant subsection.
19
13 Subsection 125(1)
20
Omit "regulated entity", substitute "person".
21
14 Paragraphs 125(1)(a), (b) and (c)
22
Omit "the entity" (wherever occurring), substitute "the person".
23
15 Subsections 125(3) and (4)
24
Omit "regulated entity", substitute "person".
25
16 Subsection 125(5)
26
Before "TEQSA may", insert "If the person giving the undertaking is a
27
regulated entity,".
28
17 Paragraph 126(1)(a)
29
Omit "regulated entity", substitute "person".
30
Amendments
Schedule 1
No. , 2019
Tertiary Education Quality and Standards Agency Amendment
(Prohibiting Academic Cheating Services) Bill 2019
11
18 Paragraph 126(1)(c)
1
Omit "the entity", substitute "the person".
2
19 Subsection 126(2)
3
Omit "regulated entity", substitute "person".
4
20 Paragraphs 126(2)(a), (b) and (c)
5
Omit "the entity" (wherever occurring), substitute "the person".
6
21 Section 127 (heading)
7
Repeal the heading, substitute:
8
127 Restraining and performance injunctions
9
22 Subsection 127(1)
10
Omit "regulated entity", substitute "person".
11
23 Paragraphs 127(1)(c) and (d)
12
Omit "the entity", substitute "the person".
13
24 Paragraph 127(2)(a)
14
Omit "regulated entity", substitute "person".
15
25 Subsection 127(2)
16
Omit "the entity", substitute "the person".
17
26 After section 127
18
Insert:
19
127A Injunctions relating to online locations that facilitate provision
20
of, or advertising of, academic cheating services
21
Application for an injunction
22
(1) TEQSA may apply, on behalf of the Commonwealth, to the
23
Federal Court to grant an injunction that requires a carriage service
24
provider to take such steps as the Court considers reasonable to
25
Schedule 1
Amendments
12
Tertiary Education Quality and Standards Agency Amendment
(Prohibiting Academic Cheating Services) Bill 2019
No. , 2019
disable access to an online location that contravenes, or facilitates a
1
contravention of, section 114A or 114B.
2
(2) The application under subsection (1) may also request that the
3
injunction require an online search engine provider (other than a
4
provider that is covered by a declaration under subsection (11)) to
5
take such steps as the Court considers reasonable so as not to
6
provide a search result that refers users to the online location.
7
Granting the injunction
8
(3) The Court may grant the injunction in the terms, and subject to the
9
conditions, that the Court considers appropriate.
10
Note 1:
For the matters that the Court may take into account when determining
11
whether to grant the injunction, see subsection (7).
12
Note 2:
The terms and conditions of the injunction that apply to a carriage
13
service provider under subsection (1) may be different from those that
14
apply to an online search engine provider under subsection (2).
15
(4) Without limiting subsection (3), the injunction may:
16
(a) require the carriage service provider to take reasonable steps
17
to do either or both of the following:
18
(i) block domain names, URLs and IP addresses that
19
provide access to the online location and that are
20
specified in the injunction;
21
(ii) block domain names, URLs and IP addresses that the
22
carriage service provider and TEQSA agree, in writing,
23
have started to provide access to the online location
24
after the injunction is made; and
25
(b) require the online search engine provider to take reasonable
26
steps to do either or both of the following:
27
(i) not provide search results that include domain names,
28
URLs and IP addresses that provide access to the online
29
location and that are specified in the injunction;
30
(ii) not provide search results that include domain names,
31
URLs and IP addresses that the online search engine
32
provider and TEQSA agree, in writing, have started to
33
provide access to the online location after the injunction
34
is made.
35
Amendments
Schedule 1
No. , 2019
Tertiary Education Quality and Standards Agency Amendment
(Prohibiting Academic Cheating Services) Bill 2019
13
Parties
1
(5) The parties to an action under subsection (1) are:
2
(a) TEQSA; and
3
(b) the carriage service provider; and
4
(c) if the application under subsection (1) also sought for the
5
injunction to apply against an online search engine
6
provider--the online search engine provider; and
7
(d) the person who operates the online location if, but only if,
8
that person makes an application to be joined as a party to the
9
proceedings.
10
Service
11
(6) TEQSA must notify:
12
(a) the carriage service provider; and
13
(b) if the application under subsection (1) also sought for the
14
injunction to apply against an online search engine
15
provider--the online search engine provider; and
16
(c) the person who operates the online location;
17
of the making of an application under subsection (1), but the Court
18
may dispense, on such terms as it sees fit, with the notice required
19
to be sent under paragraph (c) if the Court is satisfied that TEQSA
20
is unable, despite reasonable efforts, to determine the identity or
21
address of the person who operates the online location, or to send
22
notices to that person.
23
Matters to be taken into account
24
(7) In determining whether to grant the injunction, the Court may take
25
the following matters into account:
26
(a) whether disabling access to the online location is a
27
proportionate response in the circumstances;
28
(b) if the application under subsection (1) also sought for the
29
injunction to apply against an online search engine
30
provider--whether not providing search results that refer
31
users to the online location is a proportionate response in the
32
circumstances;
33
(c) the impact on any person, or class of persons, likely to be
34
affected by the grant of the injunction;
35
Schedule 1
Amendments
14
Tertiary Education Quality and Standards Agency Amendment
(Prohibiting Academic Cheating Services) Bill 2019
No. , 2019
(d) whether it is in the public interest to disable access to the
1
online location;
2
(e) if the application under subsection (1) also sought for the
3
injunction to apply against an online search engine
4
provider--whether it is in the public interest not to provide
5
search results that refer users to the online location;
6
(f) whether TEQSA complied with subsection (6);
7
(g) any other remedies available under this Act;
8
(h) any other matter prescribed by the regulations;
9
(i) any other relevant matter.
10
Rescinding and varying injunctions
11
(8) The Court may:
12
(a) limit the duration of; or
13
(b) upon application, rescind or vary;
14
an injunction granted under this section.
15
(9) An application under subsection (8) may be made by:
16
(a) any of the persons referred to in subsection (5); or
17
(b) any other person prescribed by the regulations.
18
(10) An application under subsection (8) must not request the Court to
19
vary the injunction so that it applies to an online search engine
20
provider that is covered by a declaration under subsection (11).
21
Declarations excluding online search engine providers
22
(11) The Minister may, by legislative instrument, declare that:
23
(a) a particular online search engine provider; or
24
(b) an online search engine provider that is a member of a
25
particular class;
26
must not be specified in an application under subsection (1) or (8).
27
Costs
28
(12) A carriage service provider or, if applicable, an online search
29
engine provider is not liable for any costs in relation to the
30
proceedings unless the provider enters an appearance and takes
31
part in the proceedings.
32
Amendments
Schedule 1
No. , 2019
Tertiary Education Quality and Standards Agency Amendment
(Prohibiting Academic Cheating Services) Bill 2019
15
27 Section 128
1
After "under section 127", insert "or 127A".
2
28 Paragraphs 128(a) and (b)
3
Omit "regulated entity", substitute "person".
4
29 Subsection 130(1)
5
Omit "regulated entity", substitute "person".
6
30 Paragraphs 130(1)(a), (b) and (c)
7
Omit "the entity", substitute "the person".
8
31 Subsection 130(2)
9
Omit "regulated entity", substitute "person".
10
32 Paragraphs 130(2)(a), (b) and (c)
11
Omit "the entity", substitute "the person".
12
33 After paragraph 134(1)(d)
13
Insert:
14
(da) to protect and enhance academic integrity by:
15
(i) gathering, providing and sharing information, and
16
providing education, in relation to the conduct
17
prohibited by sections 114A and 114B; and
18
(ii) conducting research relating to academic cheating
19
services; and
20
(iii) taking action to prevent access to online sources of
21
academic cheating services;
22
34 Division 2 of Part 10 (heading)
23
Repeal the heading, substitute:
24
Division 2--Management of higher education information
25
35 Paragraph 188(1)(a)
26
Repeal the paragraph, substitute:
27
Schedule 1
Amendments
16
Tertiary Education Quality and Standards Agency Amendment
(Prohibiting Academic Cheating Services) Bill 2019
No. , 2019
(a) the person obtains higher education information in the
1
person's capacity as an entrusted person; and
2
36 Section 197
3
Omit "(within the meaning of the
National Security Information
4
(Criminal and Civil Proceedings) Act 2004
)".
5
37 At the end of Part 10
6
Add:
7
Division 3--Management of academic cheating services
8
information
9
197A Offence of unauthorised disclosure or use of academic
10
cheating services information
11
(1) A person commits an offence if:
12
(a) the person obtains academic cheating services information in
13
the person's capacity as an entrusted person; and
14
(b) the person:
15
(i) discloses the information to another person; or
16
(ii) uses the information.
17
Penalty: Imprisonment for 2 years.
18
Exception
19
(2) Subsection (1) does not apply if:
20
(a) the disclosure or use is made for the purposes of this Act or
21
the
Education Services for Overseas Students Act 2000
, or
22
otherwise is in connection with the performance of the
23
person's duties as an entrusted person; or
24
(b) the disclosure or use is authorised by section 197B.
25
Note:
A defendant bears an evidential burden in relation to a matter in
26
subsection (2) (see subsection 13.3(3) of the
Criminal Code
).
27
Amendments
Schedule 1
No. , 2019
Tertiary Education Quality and Standards Agency Amendment
(Prohibiting Academic Cheating Services) Bill 2019
17
197B Authorised disclosure and use of academic cheating services
1
information
2
Disclosing etc. information relating to providers of academic
3
cheating services
4
(1) TEQSA may disclose or use academic cheating services
5
information if the disclosure or use is of information that a person
6
provides, or is reasonably suspected by TEQSA of providing, an
7
academic cheating service.
8
Disclosing information relating to users of academic cheating
9
services
10
(2) TEQSA may disclose academic cheating services information to a
11
higher education provider if:
12
(a) the disclosure is of information that a person has used, or is
13
reasonably suspected by TEQSA of using, an academic
14
cheating service; and
15
(b) TEQSA knows, or reasonably suspects, that the person is or
16
has been enrolled in a course of study with the higher
17
education provider.
18
(3) TEQSA may disclose academic cheating services information to a
19
regulatory authority of another country if:
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(a) cooperative arrangements exist with that authority or country
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that relate to the regulation of higher education; and
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(b) the disclosure is consistent with those arrangements.
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197C Obtaining academic cheating services information
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A person may disclose academic cheating services information to
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TEQSA to assist TEQSA in performing its functions under
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paragraph 134(1)(c), (da) or (j).
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197D Information about national security
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Section 197B does not apply to national security information.
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