Statutory Interpretation: Constitutional Validity (Australia)

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Constitutional validity

The legislation is written as Commonwealth legislation. The legislation has been passed and assented to regulate the devaluation of university qualifications and regulate the conduct and activities, including online academic criminal activities of graduates who, have compromised their integrity and future employed decision-makers who have compromised their independence.

The legislation is constitutionally valid as under s. 51 (v) of the Commonwealth of Australia Constitution Act, ‘The Parliament shall, subject to this Constitution, have the power to make laws for the peace, order, and good government of the Commonwealth with respect to… (v) postal, telegraphic, telephonic, and other like services;’

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The Academic Trust and Integrity Protect Act 2019 (Cth) in s. 4 and s. 5 makes specific reference ‘websites’ and ‘online’. It is presumed that the communication powers are to be applied broadly as new technologies become available.

Due to regulation of the Internet found in the Interactive Gambling Act 2001, it would be presumed that s. 51 (v) would also be applicable to The Academic Trust and Integrity Protection Act 2019 (Cth). The Act is a Commonwealth Act; therefore, the Acts Interpretation Act 1901 (Cth) applies.

Jurisdiction and commencement of the Act

The assumed events commenced on 1 March 2019 in Queensland, and therefore, that the Act was in force then and within the jurisdiction of a Commonwealth Act.

As stated in the End Notes of the Act gives the Act came into effect upon accent on 1 January 2019.

Classification of statute

The Act is classified as a penal Act. The Act contains provisions for both penalties of fines and terms of imprisonment for breaches.

The Act also contains Administrative Law as there is a Board of Academic Trust and Integrity in Knowledge that is to establish a Register which in turn will have the necessary statutory powers to carry out functions as stated in the Explanatory Notes.

Identification of the operative provisions.

Section 4 of the Act contains a basic prohibitive clause which can be clearly identified by the section heading.

This section prohibits advertising or providing online academic criminal activity services.

This provision will not apply to Delia as she was not a service provider, but the receiver of the service provider’s services.

Section 5 of the Act contains a basic prohibitive clause which can be clearly identified by the section heading. This section prohibits entering into or engaging in online academic criminal activity.

This provision will apply to Delia as she was the student who engaged with the service provider.

Section 6 of the Act contains a basic compulsive clause which can be clearly identified by the word ‘must’ in 6.2. This section creates the offence of a failure to declare incidents or activities of online academic criminal activity in the Register of Academic Trust and Integrity.

This provision may apply to Delia as she was the student who engaged with the service provider and will apply if she does not declare her online criminal activities.

Offence Provisions

Section 4 creates the offense, though using a ‘basic prohibitive clause’. The offence is that ‘A person or entity commits an offence if the person advertises or provides any online service with the intention of giving a student an unfair advantage over other students.’ The punishment which are prescribed if a person or entity offends against the provision is the maximum penalty—$110,000 or imprisonment for 15 years.

Section 5 creates the offence by using a ‘basic prohibitive clause’. The offence is that ‘Any student who engages with or enters into any service with a third party specified in section 4(2) commits a breach of this section’. The punishment which are prescribed if a person or entity offends against the provision is Penalty—Forfeiture of academic qualification.

Section 6 creates the offence through using a ‘basic compulsive clause’;’, The offence is that a person must declare in the Register of Academic Trust and Integrity all and any prior incidents, including searches of online academic criminal activity websites, engagement with an online academic criminal activity website, whether the activities were carried out or not, in whole or in part’. The punishment which are prescribed if a person or entity offends against the provision is Penalty—$10,000 per incident.

Machinery Provisions

The machinery provisions are outlined in Section 8 of the Act. The provision is to create and give authority to the Board of Academic Trust and Integrity in Knowledge. Further, in the Explanatory Notes, it gives validation to the statutory powers the Board will have to carry out the Board’s function.

Purpose and context of the Act

Immediate context

Section 15AA of the Acts Interpretation Act 1901 requires that ‘In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation’.

The immediate context would include all intrinsic materials. This would include reading the Act as a whole and also found in the objects of the Act.

Broader context

From the political commentary on the Bill found in the Second Reading Speech the broader purpose, and the context of the Act relates to the need to protect university qualifications against those who seek to devalue them and a register of information about the conduct, integrity and character of a prospective employee. The Second Reading Speech has a main focus on the employer gain. The Act clearly provides resources (A Board of Academic Trust and Integrity in Knowledge and a Register of Trust and Integrity) to achieve the Acts recognised purposes.

Applying The Approaches To Statutory Interpretation

A modern approach to statutory interpretation

The modern approach to statutory interpretation is found in The Acts Interpretation Act 1901 (Cth) Section 15AA (1).

‘In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether the purpose or object expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object’.

Intrinsic aids

The purpose of the Act can be found by looking at the words in the Act and reading it as a whole. The long title and objects will both assist. The long title provides that the Act is ‘An Act to promote trust and integrity in university qualifications by regulating (including prohibiting) activities that erode the value of university qualifications, and as well to regulate conduct and activities of graduates who have compromised their integrity and put at risk their own independence if they become employed in decision- marking roles.’

The five objectives of the Act make the Acts’ intentions clear. The act intends to:

  • provide a framework for learning and teaching on activities associated with completion of university assessment;
  • promote academic integrity within universities;
  • strictly prohibit any and all forms of academic plagiarism including online academic criminal activities;
  • protect graduates from future criminal threats;
  • enable employers to make informed choices about future employees.

These objects are followed through in the Act by the following provisions:

Section 4 prohibits the advertising or providing online academic criminal activity services and gives further definition of ‘service’ as well as creating an offense provision.

Sections 5 prohibits entering into or engaging in online criminal activity and creates an offense provision.

Section 6 creates the offence provision in relation to failure to declare prior incidents.

Carr v Western Australia

provides that in working out dominant purposes in legislation, an examination of the resources allocated to achieve the purposes should be carried out.

The objects of this Act protect graduates and employers from criminal threats, and promote the value and integrity of university qualifications.

The provisions above narrate the formation of statutory resources, and the construction of offence provisions that support the object of promoting academic integrity.

Analysis of the operative provision: Intrinsic aids

The operative provisions are Section 4, 5 and 6, as noted above.

The elements of Section 4 (1) are:

  • A person or entity
  • commits an offence if the person advertises or provides any online service
  • with the intention of giving a student an unfair advantage over other students

A person or entity

Delia is a person, and Ezidegrees is an entity.

Commits an offence if the person advertises or provides any online service

Ezidegrees provided Delia with a completed assessment. Ezidegrees is committing the offence.

With the intention of giving a student an unfair advantage over other students

Delia has a completed assignment not completed by herself, and this would give an unfair advantage over other students.

The word ‘intention’ in the Macquarie Dictionary is defined as the act of determining mentally upon some action or result; a purpose or design.

The word ‘unfair’ in the Macquarie Dictionary is defined as not fair; biased or partial; not just or equitable; unjust.

The word ‘advantage’ in the Macquarie Dictionary is defined as any state, circumstance, opportunity, or means specially favourable to success, interest, or any desired end.

The word ‘student’ is defined in Section 3 of the Act. Delia is enrolled in a university program listed under schedule 1 and therefore, classified as a student.

The elements of Section 5 (1) are:

  • Any student
  • who engages with or enters into
  • any service with a third party specified in section 4(2)
  • commits a breach of this section.
  • who engages with or enters into

The words ‘Engages with or enters into’ is defined in Section 3 of the Act.

Delia searched, viewed, clicked on, communicated with and formed a contract with Ezidegree.

any service with a third party specified in section 4(2)

The definition of ‘service’ and in turn reference ‘third party’ is found in Section 4.2.

Ezidegree provided Delia with a completed assignment which was required to complete as part of her university program.

commits a breach of this section.

The word ‘commits’ in the Macquarie Dictionary is defined as to give in trust or charge.

The word ‘breach’ in the Macquarie Dictionary is defined as to violate.

Delia breaches this section.

The elements of Section 6 (2) are:

  • must declare in the Register of Academic Trust and Integrity
  • all and any prior incidents including searches of online academic criminal activity websites, engagement with an online academic criminal activity website
  • whether the activities were carried out or not, in whole or in part.
  • must declare in the Register of Academic Trust and Integrity

The word ‘declare’ in the Macquarie Dictionary is defined as to announce officially; proclaim.

The word ‘register’ in the Macquarie Dictionary is defined as a book in which entries of acts, occurrences, names, or the like are made for record.

all and any prior incidents including searches of online academic criminal activity websites, engagement with an online academic criminal activity website

The word ‘prior’ in the Macquarie Dictionary is defined as preceding in time, or in order; earlier or former; anterior or antecedent.

The word ‘incidents’ in the Macquarie Dictionary are defined as an occurrence or event.

The words ‘online academic criminal activity websites’’ are defined in Section 3 of the Act.

whether the activities were carried out or not, in whole or in part.

The word ‘activities’ in the Macquarie Dictionary is defined as the state of action; doing.

It’s unknown from the fact situation if Delia declared her online academic criminal activity. Should Delia declare the incidences she may be entitled to ‘indemnity’ although from the fact situation this cannot be concluded.

Extension of the analysis of the operative provisions: Extrinsic aids

Section 15AB (e) and (f) of the Acts Interpretation Act 1901 (Cth) provides that the Second Reading Speech and Explanatory Notes can be used for the interpretation of a provision of an Act.

The Second Reading Speech indicates that the Act has been introduced into Parliament to recognise the threats to the tertiary education system by students gaining university degrees through fraudulent and criminal activities. The Act intends to reveal all parties involved in the academic criminal activities. The Second Reading does not state what the penalties will be in force and by whom.

The Explanatory Notes provide more clarity around the penalties, the role and ability of The Board of Academic Trust and Integrity and the information in regard to the register/ database.

Clause 4 of the Explanatory Notes identifies various ways in which the online criminal activities can occur and also give reasons for why the offence penalty for service providers is a more substantial figure.

Clause 5 of the Explanatory Notes identifies that the offence is committed at the time of the provision of service not when the assignment is submitted.

Clause 6 of the Explanatory Notes identifies the object in the Act in relation to employers being privy to the information in regard to their employee’s online academic criminal activity as there is no further mention of this in the Act beside what is outlined in the Objects. The Explanatory Notes explain how the Register will alert the employer.

It however does not offer a comment on a procedure on how the employer will be alerted or what information will be divulged to the employer or make a comment to the privacy act.

This clause does clarify on how the system/ database will operate. There is no clarification of failure procedures of the automated system and if the process of entering into the database can be conducted manually.

There has been no comment on how a student/ graduate can disclose prior academic criminal activity or a process.

Clause 7 of the Explanatory Notes identifies give the definition of who can provide indemnity, although does not clarify the word ‘indemnity’ meaning.

Clause 8 of the Explanatory Notes identifies that the Board will have statutory powers to carry out functions.

The Act is undefined in the use of the word ‘indemnity’. Section 15AB of the Acts Interpretation Act 1901 (Cth) agrees a dictionary be used to confirm the literal meaning words that are not defined within the legislation. The dictionary defines ‘indemnity’ as:

  1. protection or security, as by insurance, against damage or loss.
  2. compensation for damage or loss sustained.
  3. something paid by way of such compensation.
  4. legal protection, as by insurance, from liabilities or penalties incurred by one’s actions.
  5. legal exemption from penalties attaching to unconstitutional or illegal actions, granted to public officers and other persons.

When applying the Golden Rule and taking the narrow approach it would be presumed that the Act would give legal exemption from penalties.

When also applying the Purpose Approach allows the meaning of the word to follow the legal exemption definition as Parliament would have written penalties in the act as shown in other sections should they have wanted this to be a penalty.

Conclusion

  • Section 1 of the Act does apply to Delia as paragraph 3 in the Objectives state that: Strictly prohibit any and all forms of academic plagiarism, including online academic criminal activities. Delia accessed the services of EziDegrees on the 1st of March and then again, on the 10th of March 2019 and made payments for the completion of her assignment.
  • Section 2 of the Act does apply to Delia as the assent date was the 1st January 2019, and the events commenced on the 1st March 2019.
  • Section 3 of the Act does apply to Delia as all the definitions apply in the fact situation.
  • Section 4 of the Act does not apply to Delia this section addresses the service provider or third party, and Delia is a student not the service provider.
  • Section 5 of the Act does apply to Delia as she is defined as the student who engaged in the service. She entered into a contract with the service provider by making payment for the completion of her assignment.
  • Section 6 of the Act does apply to Delia as she is defined as the student who engaged in the service, although we are unaware if Delia declared these activities.
  • Section 7 of the Act does apply to Delia as she is defined as the student who engaged in the service, although we are unaware if Delia declared these activities.
  • Section 8 of the Act indirectly applies to Delia as she will be monitored by The Board of Academic Trust and Integrity in, and her details recorded in the Register.

In conclusion, the Act applies to Delia. The assumed events commenced on 1 March 2019 in Queensland, and therefore, that the Act was in force then and within the jurisdiction of a Commonwealth Act. Delia searched and engaged with the Online Criminal Activity Service Provide to purchase a completed assignment.

Section 6 of the Act, we are unsure if Delia would be granted indemnity as it’s unclear from the fact situation if she reported the online criminal activities or not.

From the evidence gathered students could conclude that Delia would receive a penalty of forfeiture of academic qualifications.

Question 2: Using short sentences, discuss the two newspaper articles above in how the media play a role within the Australian legal system, and its institutions and how governments might use the media.

The media is a persuasive player and influence the society at large it provides the public with information, research and analysis of events and topics of interest.

Governments may use the media strategies to promote their activities, interests, schemes and political policies, bury unwanted news by timing their release, and create the illusion of independent news and controlling or influencing markets.

“The Law Society does not support a culture of trial by media. Protecting juries from biased media influence is necessary for impartiality and fairness.

The jury must have the ability to determine a verdict based on evidence presented at the court, in accordance with court rules and procedure. Sensational and biased media reports need to be left completely out of the picture.”

I think the above quote has relevance to the articles and the way the media plays a role in the Australian Legal system. My thoughts lie with the second article printed in the National Express and how Madeline Montgomery possibly could be subjected to a media influenced bias trial as the evidence has been sought via a vigilant group who had used unpoliced methods to gain evidence and then leaked to the media. As Montgomery has been yet to stand trial, she has already been painted in a negative light using the words ‘disgrace’ and ‘scandal’.

Question 3: Using short sentences describe how the amendment will be progressed and note any comments you think are relevant on its progression and relating to the international agreement.

The initial step is to identify the current issues with the act, then a member of parliament will suggest an amendment to an Act by presenting an amendment Bill (‘moving an amendment). This then must be discussed in the Australian Parliament either in the House of Representatives or the Senate.

The Path Of A Bill:

  • 1st reading speech is made by the Member of Parliament that is proposing the Bill, and they will give an overview of the purpose and content of the amending bill.
  • 2nd Reading Speech is where the members debate and vote upon the amending Bill.

Detail of Consideration is where the members provide an opportunity for the Bill be examined in more detail and examine all proposed treaty actions in relation to the amendment proposed.

  • 3rd Reading Speech is where members vote on the Bill in the final form. If the amendment Bill is passed by both Houses of the Parliament, it will give effect to the treaty and the title to the act will change. The title of the Act then includes the word ‘amendment’ –University Academic Integrity and Graduate Protection Amendment Act 2019 (Cth).

Royal Assent this is where the approval is given for the amendment by the Governor-General and now is an Act of Parliament.

  1. Commonwealth of Australia Constitution Act Section 51
  2. Australian Government Department of Communication and the Arts, Interactive Gambling (24/05/2019)
  3. Learning Law (Cambridge University, 1st ed, 2018) 97-98
  4. Learning Law (Cambridge University, 1st ed, 2018) 99
  5. Learning Law (Cambridge University, 1st ed, 2018) 156-157
  6. Learning Law, (Cambridge University, 1st ed, 2018) 158
  7. Acts Interpretation Act 1901 Section 15AA
  8. Reference from handouts
  9. Acts Interpretation Act 1901 Section 15AA
  10. Learning Law, (Cambridge University, 1st ed, 2018) 161
  11. Carr vs The State of Western Australia (2007) HCA47
  12. Learning Law, (Cambridge University, 1st ed, 2018) 159-160
  13. Macquarie Dictionary, 2019
  14. Learning Law, (Cambridge University, 1st ed, 2018) 159-160
  15. Acts Interpretation Act 1901 Section 15AB
  16. Learning Law, (Cambridge University, 1st ed, 2018) 187-190
  17. Learning Law, (Cambridge University, 1st ed, 2018) 158-165
  18. Learning Law, Roles of the media in oversight (Cambridge University, 1st ed, 2018) 57-58
  19. Stuart Westgarth, ‘Media presence in court can be dangerous in some cases’, The Australian, 20 February 2011
  20. Parliamentary Education Office, Fact Sheets Amendments (11/05/2019)
  21. Learning Law, (Cambridge University, 1st ed, 2018) 103-104
  22. Australian Government Department of Foreign Affairs and International Trade, Treaty making process (11/05/2019)
  23. Australian Government Department of Foreign Affairs and International Trade, Treaty making process (11/05/2019)

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