Tertiary Education Quality and Standards Agency Amendment (Prohibiting Academic Cheating Services) Bill 2019 [2020] AUSStaCSBSD 12 (5 February 2020)

• Tertiary Education Quality and Standards Agency Amendment (Prohibiting Academic Cheating Services) Bill 2019
• Broad discretionary powers
• Significant matters in delegated legislation 56
• Reversal of the evidential burden of proof57

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

Purpose	This bill seeks to implement recommendations of the Higher Education Standards Panel to introduce deterrents to third party academic cheating services in higher education
Portfolio	Education
Introduced	House of Representatives on 4 December 2019

Broad discretionary powers
Significant matters in delegated legislation ^[56]

1.88 The bill seeks to insert proposed section 127A into the Tertiary Education Quality and Standards Agency Act 2011 (TEQSA Act), which would allow TEQSA to seek an injunction from the Federal Court to require a carriage service provider to take steps to disable access to online locations that provide or advertise academic cheating services.

1.89 Proposed subsection 127A(11) provides that the minister may, by legislative instrument, exempt a particular online search engine provider or an online search engine provider that is in a particular class from applications for an injunction.

1.90 From a scrutiny perspective, the committee is concerned that proposed subsection 127(11) appears to confer on the minister a broad power to exempt online search engine providers from the operation of the legislation in circumstances where there is no guidance on the face of the primary legislation regarding the conditions for the exercise of the power. Additionally the committee's longstanding view is that significant matters should be included in the primary legislation unless a sound justification for the use of delegated legislation is provided. The explanatory memorandum does not include any information as to why it is necessary that certain online search engine providers be exempted or why this has been left to delegated legislation.

1.91 It is unclear to the committee why at least high level guidance about when the power to exempt online search engine providers is to be used could not be included on the face of the primary legislation. The committee notes that a legislative instrument, made by the executive, is not subject to the full range of parliamentary scrutiny inherent in bringing the proposed changes in the form of an amending bill.

1.92 In light of the above, the committee requests the minister's advice as to:

• why it is considered necessary and appropriate to provide the minister with the power to exempt online search engine providers from applications for an injunction under proposed section 127A;

• why it is considered necessary and appropriate for the exemptions to be contained in delegated legislation; and

• the appropriateness of amending the bill to provide at least high level guidance as to when the minister can grant exemptions under proposed subsection 127A(11).

Reversal of the evidential burden of proof^[57]

1.93 The bill seeks to insert proposed section 197A into the TEQSA Act, which would make it an offence for a person to disclose or use information obtained in their capacity as an entrusted person. Proposed subsection 197A(2) provides that the offence will 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; is otherwise in connection with the performance of the person's duties as an entrusted person; or is authorised by proposed section 197B.

1.94 At common law, it is ordinarily the duty of the prosecution to prove all the elements of an offence. This is an important aspect of the right to be presumed innocent until proven guilty. Provisions that reverse the burden of proof and require a defendant to disprove, or raise evidence to disprove, one or more elements of an offence, interferes with this common law right.^[58]

1.95 The committee notes that the Guide to Framing Commonwealth Offences provides that a matter should only be included in an offence-specific defence (as opposed to being specified as an element of the offence), where:

• it is peculiarly within the knowledge of the defendant; and

• it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.^[59]

1.96 While in this instance the defendant bears an evidential burden (requiring the defendant to raise evidence about the matter), rather than a legal burden (requiring the defendant to positively prove the matter), the committee expects any such reversal of the evidential burden of proof to be justified. The explanatory materials do not contain any information regarding why it is appropriate to reverse the evidential burden of proof for the offence in proposed section 197A.

1.97 As the explanatory materials do not address this issue, the committee requests the minister's advice as to why it is proposed to use an offence-specific defence (which reverses the evidential burden of proof) in this instance. The committee's consideration of the appropriateness of each provision which reverses the burden of proof is assisted if it explicitly addresses the relevant principles as set out in the Guide to Framing Commonwealth Offences.^[60]

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[56] Schedule 1, item 26, proposed section 127A. The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(ii) and (iv).

[57] Schedule 1, item 37, proposed section 197A. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[58] Subsection 13.3(3) of the Criminal Code Act 1995 provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification bears an evidential burden in relation to that matter.

[59] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 50.

[60] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 50-52.