Whack a mole? Tertiary Education Quality and Standards Agency v Telstra Corporation Ltd [2021] FCA 1202 comments
1 The applicant, the Tertiary Education Quality and Standards Agency (TEQSA), seeks orders pursuant to s 127A of the Tertiary Education Quality and Standards Agency Act 2011 (Cth) (TEQSA Act) requiring the respondent carriage service providers (CSPs) to take steps to disable access to the online locations at the following domain names: ‘assignmenthelp4you.com’ and ‘assignmenthelp2u.com’, and the associated Uniform Resource Locators (URLs) and Internet Protocol (IP) addresses identified in the amended originating application and Schedule A to the amended concise statement (together, the Online Locations).
2 The Online Locations (which appear to be operated by a person or persons located in India) are websites which are, or were, accessible to internet users (including in Australia) at the URLs, domain names, and the IP addresses specified in Schedule A to the amended concise statement. The Online Locations advertise or publish an advertisement to students undertaking courses of study offered by various Australian higher education providers, and offer services which include assignment, dissertation and essay writing for a fee. Those higher education providers include the University of Sydney, the University of New South Wales, La Trobe University , the University of Technology, the University of Melbourne, the University of Western Australia, the University of Queensland, the University of South Australia and the Australian Institute of Business and Management Pty Ltd (trading as King’s Own Institute).
3 Although the site-blocking orders are sought in respect of two domain names, URLs and IP addresses, it is contended by TEQSA that they emanate from the same source and advertise the same service in substantially the same terms. This is in a context where the online location at the domain name ‘assignmenthelp4you.com’, became inaccessible (at least temporarily) very shortly after TEQSA notified the operator of this application. Around the same time, the online location became accessible at the domain name ‘assignmenthelp2u.com’, revealing strong similarities to ‘assignmenthelp4you.com’.
4 The basis of the application for the orders sought is that the Online Locations advertise, publish or broadcast advertisements for an academic cheating service to students undertaking Australian courses of study with higher educator providers thereby, (at least) facilitating a contravention of s 114B(2) of the TEQSA Act.
5 Each of the respondents is a CSP within the meaning of s 5 of the TEQSA Act and s 87 of the Telecommunications Act 1997 (Cth), and provides access to the internet for users of its internet service in Australia. Each of the respondent CSPs were notified of this application in accordance with s 127A(6)(b) of the TEQSA Act and have filed submitting appearances.
6 No entity has opposed the orders that TEQSA seeks, nor contested the facts and contentions set out in TEQSA’s amended concise statement. ...
10 As noted above, this application is based on a contravention of s 114B(2) which is relevantly in the following terms:
114B Prohibition on advertising academic cheating services (1) A person commits an offence if: (a) the person advertises, or publishes or broadcasts an advertisement for, an academic cheating service to students undertaking, with a higher education provider: (i) an Australian course of study; or (ii) an overseas course of study provided at Australian premises; and (b) either: (i) the person does so for a commercial purpose; or (ii) the academic cheating service has a commercial purpose. Penalty: 2 years imprisonment or 500 penalty units, or both. (2) A person contravenes this subsection if the person advertises, or publishes or broadcasts an advertisement for, an academic cheating service to students undertaking, with a higher education provider: (a) an Australian course of study; or (b) an overseas course of study provided at Australian premises. Civil penalty: 500 penalty units.
11 These provisions were introduced into the TEQSA Act by amendments in 2019. The Explanatory Memorandum to the Tertiary Education Quality and Standards Agency Amendment (Prohibiting Academic Cheating Services) Bill 2019 (Cth) (the Bill) introducing ss 114B and 127A, stated: Section 127A will be particularly important to reduce the visibility of, and ease of access to, overseas websites that provide or advertise cheating services. While prosecution of overseas website operators and content authors may be difficult, blocking of these sites by internet service providers...is an action that can be taken from within Australia and will go some way to reducing their availability and impact.
12 This is the first application under s 127A. That said, the Copyright Act 1968 (Cth) contains s 115A, which is a similar provision to s 127A. Section 115A provides, in that context, for site-blocking injunctions against foreign online locations that have the primary purpose or effect of infringing copyright or facilitating copyright infringement. ...
24 I am satisfied that, as TEQSA submitted, the persons operating the Online Locations are advertising an academic cheating service to students undertaking an Australian course of study with a higher education provider, in contravention of s 114B(2). It follows that the Online Locations are facilitating the operators’ contravention of (at least) s 114B(2) for the purpose of s 127A(1) of the TEQSA Act.
25 The below statements made on the website of ‘assignmenthelp4you.com’ (and exhibited in screenshots taken by Ms Pritchard in April and May 2021) reveal, inter alia, that it variously advertised and published the following services: ‘Find Best Academic Writers for Hire! Get Classroom Assignment Writing Service Acquire world’s best online assignment writing service at cheaper rate! ... No plagiarism policy – Enhance your academic grade with scoring high in each assignment! ... Order An Assignment!!’. ‘Buy Premium Writing Services’, ‘we deliver assignments of high quality that always meets your requirement and urgent deadlines, ‘...we deliver ....tailored academic papers...’, ‘expertise in composing dissertations for students...’, ‘Buy custom essay from professional writers’: ‘Buy Custom Essay - Acquire Top Quality Essay Writing Service!’, ‘Completely original and authentic papers ... Timely assignment delivery’, ‘If a student... cannot give much to complete their assignments, therefore, students hire a professional essay writer to ease their academic stress’, ‘The affordable essay help is served by our tutors as the own high experience and professional skills thus we have hired best writers who know how to tackle the difficult academic tasks of students’. ‘If you have a tight deadline and your assignment date is near, our experts can prepare your assignment on an urgent basis also’, ‘We also ensure you about the quality of assignment done by our academic writers. Assignment writers of Assignmenthelp4you have the potential to write lengthy or complicated assignments of any subject in the last minutes of submissions’.
26 These statements show that the website ‘assignmenthelp4you.com’ advertised an academic cheating service as defined in s 5 of the TEQSA Act.
27 This service was expressly advertised as being delivered to students in Australia, amongst others. So much is evident from the following examples (also taken by Ms Pritchard in April and May 2021), as set out by TEQSA in its submissions: (a) The Online Location available at assignmenthelp4you.com included a page titled ‘Acquire La Trobe University Australia Assignment Help By Hiring Academic Experts At Best Prices! It invites students to ‘come to us anytime and avail the benefits of our trustworthy La Trobe University Australian assignment help service’, and sets out a ‘List of Topics Covered by Courses of La Trobe University Australia’, including FIN1FOF Fundamentals of Finance and ACC1AMD Accounting for Management Decisions. (b) The Online Location available at assignmenthelp4you.com also included a similar page in relation to ‘Kings Own Institute’, which makes reference to courses including ACC301 Tax Law and FIN200 Corporate Financial Management. (c) Further, the Online Location available at assignmenthelp4you.com made reference to a large number of other Australian tertiary education institutions, including RMIT University , Charles Sturt University, University of Melbourne, University of Queensland, University of Technology Sydney, University of New South Wales, University of Western Australia, etc.
28 Ms Pritchard’s evidence establishes that the subjects referred to in subparagraphs (a) and (b), recited above, are subjects offered by Australian higher education providers, and each of the institutions referred to in subparagraph (c) are on the National Register of Higher Education Providers, which TEQSA is required by ss 198(1) and 198(5) of the TEQSA Act to establish, maintain and make available for inspection on the internet. Indeed, of the 70 institutions listed on ‘assignmenthelp4you.com’, 54 were higher education providers for the purposes of the TEQSA Act.
