The Consideration states
In June 2015 the Minister for Education requested the Higher Education Standards Panel’s advice on options identified by the Tertiary Education Quality and Standards Agency (TEQSA) to deter commercial cheating activity. These options were canvassed in advice to the Minister on responses by higher education providers to the 2014 ’MyMaster’ contract cheating service incident.
TEQSA’s advice noted that all providers had appropriate policies and practices in place to meet the relevant Higher Education Standards concerning academic integrity, but that additional legislation and/or prosecution activity were options that could be considered to help address and deter cheating by higher education students – particularly commercial or other organised services intended to facilitate cheating activity. TEQSA’s report identified three options for future action that could be considered, some of which had been suggested by stakeholder providers with which it had engaged to assess the response to ‘MyMaster’:
- the creation of new offences in legislation specifically targeting commercial cheating activity, along the lines of an approach taken by the Government of New Zealand;
- support for more effective prosecution by police and others under current laws; and
- a centralised register of detected cheating services
The Panel believes that inadequately constrained cheating activity has the potential to cause great damage to the domestic and international reputation of Australian higher education. Indeed, we have been given examples of this already occurring in the wake of the MyMaster incident. The Panel considers this is an issue which should be further addressed to reduce the incentives, rewards and opportunities for cheating to occur – particularly on an organised or commercial basis.
In 2011, New Zealand introduced penalties for cheating services into its Education Act 1989 (Section 292E – see Attachment A), which make it an offence to provide or advertise cheating services. A person convicted under this section is liable for a fine of up to $10,000. The Panel understands that when New Zealand introduced these provisions, there was an immediate deterrent impact without any actual convictions.
1. Legislative support
No Australian jurisdiction currently has offences on the books specifically aimed at deterring or punishing cheating by students or organised cheating services. Panel member Karen Thomas, Managing Partner Fisher Jeffries Barristers and Solicitors Adelaide, provided the Panel with a comprehensive survey of laws that may be applicable to cheating where it is detected. These include criminal offences for fraud, deception and dishonestly obtaining an advantage, conspiracy to defraud, forgery and related offences. Civil actions can revolve around breach of contract, the tort of deceit, and misleading or deceptive conduct under the Australian Consumer Law.
In many of these cases, the burden of proof is significant and may rely on being able to demonstrate a financial or commercial loss by an injured party in order to establish that an offence has occurred. This can be problematic for institutions to demonstrate, where reputation may be the commodity primarily at risk. Where an actor in the activity is or might be located overseas (e.g. an overseas academic paper authoring service), the difficulty is compounded. This complexity is one reason cited by stakeholders for the lack of enthusiasm from police and institutions to pursue cheating through the courts in other than the most serious and clear-cut cases.
Student awareness of responsibilities and consequences
In relation to individual students caught cheating or plagiarising, the clear preference of institutions is to take an educative approach as a first response. This is particularly the case where plagiarism is detected and may have been influenced by different cultural expectations. In the Panel’s view, this approach is appropriate. However, the Panel also considers it would be appropriate for the Government and individual institutions to proactively seek to counter such perspectives – both as students enter an institution and throughout their engagement in Australian education.
To ensure student awareness of the seriousness of the consequences from such activity, the Panel considers that wide adoption of the practice of some institutions to have enrolling students (particularly international students) make a signed commitment to academic integrity could be very beneficial. This would provide a clear basis to contrast any subsequent dishonest or criminal practice with the student’s explicit commitment at enrolment; providing no doubt about the gap between the agreed expectation and actuality.
Recommendation 1 The Panel recommends that the Government consider advocating or requiring higher education providers to adopt a template or standardised statement of personal commitment to academic integrity, which all students would be required to sign upon entering Australian higher education.
The statement should indicate that the student understands they have an obligation to undertake their studies and associated assessment activities with honesty and integrity; and that in the event the student is found to have cheated, misrepresented the work of another as their own, or wilfully plagiarised the work of others, this could lead to the student’s enrolment being cancelled or their academic results being invalidated. In the case of international students, cancellation of enrolment could lead to their student visa being cancelled also.
Constitutional advice
The Panel asked the Department of Education and Training to seek advice from the Australian Government Solicitor (AGS) on the constitutionality of Commonwealth legislative action to provide better support to institutions and regulators to deter, prevent and penalise cheating activity. The department received advice from the AGS in two separate tranches – on the constitutional powers of the Commonwealth to pursue a legislative response and options to address cheating activity within the bounds of the constitution, including joint action with the states and territories. The AGS’ advice and the Panel’s subsequent consideration focused on the potential for and appropriateness of such action targeting any or all of: • commercial cheating activity • domestic student individual cheating; and • international student individual cheating.
Constitutionally, the situation is problematic, particularly in relation to domestic students and commercial or organised cheating activity that does not involve a corporate entity. The AGS confirmed its view that the Commonwealth does not have sufficient legislative power to neatly or adequately regulate this area. While reliance can be placed on a number of constitutional heads of power, such as the communications, the territories and the trade and commerce powers, significant regulatory gaps would remain.
The AGS noted the complexity of the policy issues involved in determining: • when a student has cheated • how a spectrum of penalties would be applied, and • how any penalties would fit with universities’ own systems for policing cheating.
Organised cheating
In the Panel’s view, organised or commercial cheating presents a clear and possibly the biggest current reputational risk to Australian higher education. The Panel recommends the Government give consideration to legislative changes that would make commercial cheating activities an offence. This legislation should create an offence that would enable prosecution of organised cheating services targeting students enrolled with Australian institutions, including any individuals or organisations that facilitate or profit from such services. A secondary but significant aim of the legislation would be to discourage and frustrate organised cheating services, whether the service is located, facilitated or benefited from financially in Australia or overseas.
The approach taken by New Zealand in section 292E of its Education Act 1989 appears an appropriate model for Australia to adopt. However, the Commonwealth’s limited s constitutional heads of power mean this could not be achieved unilaterally. Were a purely Commonwealth legislative solution to be pursued, AGS advice identifies that regulatory gaps would remain where the provision of cheating services: • is purely within a state; • does not involve a constitutional corporation; • is by means other than a communication service (for example, in person) and • is directed purely at domestic students.
Cooperation with the states and territories appears to be the only basis on which the Government could develop a comprehensive legal solution. Relying on the broader powers of the states and territories could enable a simpler approach to be taken, along the lines of New Zealand’s model. Based on the AGS’ advice, an applied laws legislative model would appear the most practicable approach. Under this model, The Commonwealth could enact a law - for example, regulating the provision of cheating services in the ACT – and each State and remaining Territory would agree to apply that law by reference in legislation in each of the other jurisdictions.
The advantage of this approach is that any amendments to the law can apply automatically in the states and the other territory. In contrast, mirror legislation schemes are more likely to result in inconsistency as laws are amended.
Alternatively, in line with the approach taken for the Australian Consumer Law, the Commonwealth could enact a law applying across Australia relying on its legislative powers (e.g. regulating the conduct of constitutional corporations) and the States and Territories could agree to apply that law.
If a cooperative approach were to be pursued with other jurisdictions, the panel understands that the process would normally involve an intergovernmental agreement being entered into by the Commonwealth and the states and territories. This would be followed by the development and enactment of ‘model’ legislation by the Commonwealth with each state and the remaining territory subsequently enacting legislation which applied the Commonwealth model law in that jurisdiction. There are a variety of methods of achieving this, subject to agreement by the states. AGS have advised it would be necessary to engage the Office of Constitutional Law in the Attorney-General’s Department in relation to the constitutional policy issues relating to a cooperative legislative approach.
Legislation to address commercial cheating would necessarily be new legislation, rather than an amendment to existing legislation. The Tertiary Education Quality and Standards Agency (TEQSA) could potentially be appointed as a single national regulator with responsibility for the laws’ oversight. Further AGS advice would be required to confirm whether there are any constitutional difficulties with TEQSA undertaking such a role.
Recommendation 2:
The Panel recommends that the Government consider introducing legislation making it an offence for any person to provide or advertise cheating services, modelled on section 292E of New Zealand’s Education Act 1989. This would need to be done in cooperation with states and territories to minimise any constitutional risks. An applied laws approach appears the most efficient way to achieve this.
Recommendation 3:
The Panel recommends that the Government, in cooperation with the states and territories, consider appointing the Tertiary Education Quality and Standards Agency to act as the single national regulator with responsibility for oversight of the new cheating provisions.
Domestic students
For domestic students, under the students benefits power, the Commonwealth could place conditions on the provision of support to students, for example access to a Commonwealth Supported Place or to a HELP Loan. However the AGS notes that there would be difficulty in enforcing penalties such as cancellation of awards for a number of reasons, including: • the awarding institution would need to be induced or required to take action to cancel awards or enrolments, and it is unclear whether the Commonwealth would have the power to enforce this action • there would likely be issues relating to ‘acquisition of property’ under such an arrangement.
Given the sensitive nature of taking action in the courts against individual students, and the issues outlined in the AGS advice, the Panel does not recommend pursuing the creation of offences against individual students at this stage.
As noted above, an educative approach in the first instance appears the better response. Cancellation of enrolment, where warranted by the seriousness of an offence, is a response that is available to institutions now. Supplementing this with the possibility of criminal or civil penalties would seem overreach in the Panel’s view.
International students
For international students the issue is more straightforward as the aliens power provides wide scope for action. However, there already appears to be sufficient coverage under current arrangements for the Commonwealth to cancel the visa of an international student found to have cheated, if their higher education enrolment is terminated.
The Department of Immigration and Border Protection (DIBP) confirmed that if a student visa holder fails to maintain enrolment, does not achieve satisfactory course progress or does not achieve satisfactory course attendance, there are grounds for considering visa cancellation under section 116(1)(b) of the Migration Act 1958 for breach of visa condition 8202. Considering cancellation under this ground relies on the education provider reporting the conduct to DIBP. Essentially, if a student’s enrolment is terminated by their higher education provider, the student’s visa would be cancelled. If the offence was not serious enough to warrant termination of enrolment, there would be no impact in relation to the student visa.
The Panel does not consider additional legislative authority is required to enable action to be taken against an international student found to have cheated or acted outside of their academic integrity obligations.
2. Support for prosecutions
TEQSA noted concerns raised by Macquarie University about the lack of interest from police in pursuing criminal charges against those operating contract cheating websites. These types of concerns have been expressed by others in the sector also. In the Panel’s view such reluctance is understandable, given the complex array of criminal and civil provisions that could potentially apply and the lack of clarity about jurisdiction and constitutional authority created by the mix of Commonwealth policy and funding but largely state and territory-enacted university establishing Acts.
This reluctance is a two-way street, though. As noted above, where individual student activity is concerned, the most appropriate action in the first instance may be to take an educative approach – to encourage the student towards good practices and correct their behaviour, rather than seek to punish. Providers – rightly in many cases – are also reluctant to take too swift action. Where they do so, in some cases the lack of jurisdictional clarity has led students to challenge punitive actions. The requirement under tort law for the aggrieved party establish a financial impact from the wrongdoing, can severely limit the chance of success.
In the Panel’s view, such reluctance and lack of confidence in legal authority would best be addressed by creating a clear legal framework for future action, as proposed at Recommendation 2.
3. Intelligence gathering
TEQSA noted suggestions from Deakin University and Queensland University of Technology that a national register of contract cheating providers may be beneficial. While the Panel has no formal understanding of the cost or challenges involved in developing such a tool, the dynamic nature of the processes, technologies and participants involved in such activity would seem to present significant challenges. Simply maintaining the currency of information would be a significant task. As would be the challenge of gathering relevant information, given the variety of languages, social media and localised information platforms that can and have been exploited to promote and facilitate this activity.
The Panel considers that provider awareness, proactive monitoring and generalised good practice approaches to promoting academic integrity and discouraging cheating activity are likely to be as effective. Indeed, the existence of such a platform could lead some to believe the risks are being managed when, in fact, perpetrators have simply changed their practices to adapt to its presence.
If the Government wishes to consider such an approach, advice from the department and appropriate technology experts should be sought.'Contract cheating and assessment design: exploring the relationship' by Tracey Bretag, Rowena Harper, Michael Burton, Cath Ellis, Philip Newton, Karen van Haeringen, Sonia Saddiqui and Pearl Rozenberg in (2019) 44(5) Contract cheating and assessment design: exploring the relationship, Assessment and Evaluation in Higher Education 676-691 comments
This paper reports on findings from a large Australian research project that explored the relationship between contract cheating and assessment design. Using survey responses from 14,086 students and 1147 educators at eight universities, a multivariate analysis examined the influence of a range of factors on the likelihood that different assessment types would prompt considerations of contract cheating in students. Perceptions of likelihood were highest among students who speak a language other than English at home. Perceptions of likelihood were also higher among students who reported there to be lots of opportunities to cheat, and amongst students who were dissatisfied with the teaching and learning environment. Perceptions of likelihood for certain assessment types were also higher in commerce and engineering than in any other discipline. Overall, four assessment types were perceived by students to be the least likely to be outsourced, however these are also the least likely to be set by educators. The analysis indicates that educators are more likely to use these assessment tasks when they report positively on organisational support for teaching and learning.'Contract cheating: a survey of Australian university staff' by Rowena Harper, T. Bretag, C. Ellis, P. Newton, P. Rozenberg, S. Saddiqui & K. van Haeringen in (2018) Studies in Higher Education comments
If media reports are to be believed, Australian universities are facing a significant and growing problem of students outsourcing their assessment to third parties, a behaviour commonly known as ‘contract cheating’. Teaching staff are integral to preventing and managing this emerging form of cheating, yet there has been little evidence-based research to inform changes to their practice. This paper reports on the findings of a large-scale survey of teaching staff in Australian universities on the topic of contract cheating. It investigated staff experiences with and attitudes towards student cheating, and their views on the individual, contextual and organisational factors that inhibit or support efforts to minimise it. Findings indicate that contract cheating could be addressed by improving key aspects of the teaching and learning environment, including the relationships between students and staff. Such improvements are likely to minimise cheating, and also improve detection when cheating occurs.The authors state
Contract cheating occurs when a student submits work that has been completed for them by a third party, irrespective of the third party’s relationship with the student, and whether they are paid or unpaid. The term was coined by Lancaster and Clarke in 2006 to describe computing students’ use of professional agency sites (such as www.rent-acoder.com) to hire third parties to complete their assessment. Since then the meaning of the term has expanded, recognising that this kind of ‘outsourcing’ of assessment spans all discipline areas and involves a variety of both paid and unpaid sources, including custom assignment services, friends, family and personal tutors (for a recent overview, see Lancaster and Clarke 2016). Numerous media scandals in Australia and internationally have exposed examples of contract cheating (Visentin 2015; Doherty 2016; Yorke 2017), prompting concerns that the problem may be growing and threatening the integrity of higher education provision (Thomas and Scott 2016). Student outsourcing of assessment is not a new phenomenon and public panic is common each time a new form of student cheating emerges (Bertram Gallant 2008; Sutherland-Smith 2010). However, numerous social, economic and technological changes are converging in higher education, lending a particular sense of urgency to the problem of contract cheating. Increasing commercialisation and marketisation is repositioning education as ‘a commodity to be acquired’ (Page 2004), which has in turn led to a logical outgrowth of a cheating ‘service’ industry in which academic work becomes a commodity rather than an artefact representing a process of thinking and learning (Walker and Townley 2012; Rigby et al. 2015). This problem is compounded by increasingly precarious job markets, which encourage an employability focus for institutions and their students. This kind of ‘credentialism’ (Brown 2001) risks repositioning learning as an instrumental transaction in which students are only minimally engaged. Added to this is a booming ‘sharing economy’ (Richardson 2015) supported by online platforms that facilitate new modes of exchange of goods and services. Anything can now be easily bought or sold online – including academic labour – leading to a diminishing regard for traditional ideas about information ownership and intellectual property. Until the late 1990s, the outsourcing of assessment was necessarily a localised and hidden activity, limited to students’ own social circles. The use of online platforms such as Airtasker and Freelancer, however, make contract cheating both public and global in its reach. The visibility and potential scale of the problem is perhaps creating the impression that it is on the rise, despite no empirical evidence to suggest that this is the case. Current anxieties about contract cheating might therefore reflect a recognition that the contemporary higher education environment provides a set of ideal conditions in which contract cheating could proliferate. A significant body of research exists on why students cheat. This has largely been generated by surveys of students (a method with recognised limitations), but common findings are that students cheat for a range of individual, contextual and situational reasons. In a recent review of the literature, Brimble (2016) identifies seven motivators for cheating. These include demographic factors (e.g. age, gender and language background, with those who speak a language other than English [LOTE] particularly vulnerable), a growing cultural acceptance of cheating, a lack of knowledge and skills among students and staff, issues with curriculum design and delivery, and situational factors such as peer culture, likelihood of detection and consequences. In addition, Brimble identifies the effect of ‘modern life’ on both students and staff, which for both involves managing competing priorities, increased performance pressure, and less time and inclination to prioritise teaching and learning. Surveys of staff have also identified a range of factors that may influence student cheating. In Walker and White’s Australian study (2014), respondents cited class sizes and the ‘impersonal nature’ of contemporary teaching models as reasons why student cheating might go undetected. They reported that better trained and more experienced lecturers often remain distant from students, while those close to them are often casual staff who are more likely to have less experience and training, be less connected to institutional culture, and not paid enough to devote time to following academic integrity procedures. This environment of anonymity is potentially compounded by the practice of ‘anonymous’ marking, ostensibly established in many educational environments to reduce bias and ensure fairness. Staff also reported a tendency for appeals against breach investigations to be overturned, which undermines staff members’ faith in their institutional processes (Walker and White 2014). Findings from Sattler, Wiegel and van Veen’s German study (2017) also suggested that large class sizes were problematic, along with staff awareness of detection methods and management processes.
Anonymous and impersonal learning environments are potentially problematic, given that numerous studies have found staff–student relationships to be significant for deterring cheating. MacGregor and Stuebs (2012) found that students were more likely to engage in cheating if they perceived their educator did not care about them, concluding that students’ ethical decision-making may be influenced by the extent to which they have a personal relationship with their educator. Similarly, Beasley (2014) found that students were more likely to cheat if they perceived staff had a lack of care for individual students, their learning and their success. Simkin and McLeod (2010, 450) also found cheating was deterred by student and staff connections, particularly ‘the presence of a moral anchor in a faculty member whose opinion mattered’ to the student.
Multi-pronged and holistic approaches have been widely recommended to address academic integrity, whereby responsibilities are explicit and shared by students and staff across an institution (Bretag 2013; Morris and Carroll 2016). Responsibilities include establishing principles, policies and processes (Bretag et al. 2011; Walker and White 2014), mapping programme curricula to develop a sequential schedule of assessment that scaffolds skills (Walker and White 2014), designing assessment and course curricula to minimise opportunities and reasons to take shortcuts (Walker and Townley 2012; Morris 2016; Newton and Lang 2016), teaching academic integrity and academic practice (Sutherland-Smith 2010; Henderson and Whitelaw 2013; Cheung et al. 2016; Morris 2016), and managing breaches (e.g. enforcing rules, detecting and referring suspected cases) (Walker and White 2014). However, many of the recommendations for improving teaching practice in order to minimise cheating are based on experience and educational ‘common sense’ rather than empirical evidence which clearly demonstrates efficacy.
In any approach to academic integrity, the fundamental role of teaching staff is evident. While holistic approaches may be overseen and supported by a range of university staff, most rely on teaching staff for their implementation. Although teaching staff consider contract cheating to be a very serious ethical and moral matter (Sattler, Wiegel, and van Veen 2017), a range of factors influence the extent to which they actually implement their institution’s strategies for preventing and managing breaches of integrity. Staff may perceive that responsibility ultimately lies elsewhere (e.g. with the student) (Walker and White 2014), or they may be generally uninformed about academic integrity matters, lacking awareness or knowledge about what role they can play (Ransome and Newton 2017). A large German study of over 1400 staff at four institutions found that staff practices were primarily based on three factors: the time and workload involved, compared to the likelihood of reward; the perceived efficacy of suggested methods, and behavioural expectations of other staff and students in their context (Sattler, Wiegel, and van Veen 2017).
In this context, contract cheating presents new challenges because it is not clear how ‘detectable’ it is to teaching and marking staff. Research by Dawson and Sutherland-Smith (2017) found that markers identified 62% of contract cheating cases when they were advised to specifically look for it; however, Lines (2016) found that when markers were unaware of the possible presence of contract cheating, none was detected. Even when cases are detected, teaching staff are concerned that it may be difficult to ‘prove’ (Walker and Townley 2012). The complexity of the problem, combined with a variety of perceived barriers or disincentives to tackle it mean that many staff may simply ignore it altogether (McCabe 2005; Coren 2011).
This paper supports ongoing discussion about the role of teaching staff in responding to the problem of contract cheating, and the role of institutions in supporting them. It reports on findings from a survey of teaching staff (n = 1147) conducted at eight Australian universities. The staff survey formed part of a nationally funded research project (www.cheatingandassessment. edu.au), which also included a parallel student survey (n = 14,086). Together, the surveys were designed to explore staff and student experiences with and attitudes towards a range of outsourcing behaviours, and the individual, contextual and institutional factors that may contribute to these behaviours. Specifically, this paper addresses the following four research questions:
(1) What are the experiences of university teachers with identifying and managing contract cheating?
(2) What are university teachers’ attitudes towards contract cheating and other forms of outsourcing?
(3) To what extent do organisational factors (including policies and processes) contribute to minimising contract cheating?
(4) To what extent do university teachers implement teaching and learning practices associated with minimising contract cheating?