FEDERAL COURT OF AUSTRALIA

Tertiary Education Quality and Standards Agency v Telstra Corporation Ltd [2021] FCA 1202

ORDERS

THE COURT NOTES THAT:

1.    In these orders, the following terms have the following meanings:

Domain Name means a name formed by the rules and procedures of the Domain Name System (DNS) and includes subdomains.

DNS Blocking means a system by which any user of a Respondent's service who attempts to use a DNS resolver that is operated by or on behalf of that Respondent to access the Online Location is prevented from receiving a DNS response other than a redirection as referred to in Order 4.

IP Address means an Internet Protocol address.

Online Location means the online location that is or was accessible at:

(a)    at the following URLs:

(i)    http://www.assignmenthelp4you.com;

(ii)    http://www.assignmenthelp2u.com;

(Target URLs)

(b)    at the following domain names:

(i)    assignmenthelp4you.com;

(ii)    assignmenthelp2u.com;

(Target Domain Names)

(c)    at the following IP Addresses:

(i)    198.38.85.159;

(ii)    88.99.137.185;

(Target IP Address)

(d)    any other domain names, URLs and IP addresses that the Applicant notifies to the Respondents pursuant to Order 11 (subject to the procedure set out in that Order).

URL means a Uniform Resource Locator.

THE COURT ORDERS THAT:

1.    Each Respondent must, within 15 business days of service of these Orders (and thereafter within 15 business days of an obligation to disable access to a Domain Name, IP Address or URL arising under Order 11), take reasonable steps to disable access to the Online Location.

2.    Order 1 is taken to have been complied with by a Respondent if that Respondent implements any one or more of the following steps:

(a)    DNS Blocking in respect of the Target Domain Names;

(b)    IP Address blocking or re-routing in respect of the Target IP Addresses;

(c)    URL blocking in respect of the Target URLs and the Target Domain Names; or

(d)    any alternative technical means for disabling access to the Online Location as agreed in writing between the Applicant and a Respondent.

3.    If a Respondent in complying with Order 1 does not implement one of the steps referred to in Order 2, that Respondent must, within 15 business days of service of these Orders, notify the Applicant of the step or steps it has implemented.

4.    Each Respondent must redirect any communication by a user of its service seeking access to the Online Location which has been disabled pursuant to Order 1 to a webpage established, maintained and hosted by the Applicant, or its nominee, pursuant to Order 5.

5.    The Applicant, or its nominee, must establish, maintain and host a webpage which informs users of a Respondent’s service who have been redirected to the webpage pursuant to Order 4 that access to the Online Location has been disabled because this Court has determined that it facilitates the advertising of academic cheating services.

6.    Within 5 business days of these Orders, the Applicant will notify each of the Respondents in writing of the URL and Domain Name of the webpage established, maintained and hosted under Order 4 and, if the webpage ceases to operate for any reason, will notify each of the Respondents in writing of a different URL and Domain Name that complies with Order 5.

7.    In the event that the Applicant has a good faith belief that any Target URL, Target IP Address or Target Domain Name which is subject to these Orders has permanently ceased to enable or facilitate access to the Online Location, the Applicant must, within 15 business days of the Applicant forming such a good faith belief, notify each Respondent of that fact in writing, in which case the Respondents shall no longer be required to take steps pursuant to Order 1 to disable access to the relevant Target URL, Target IP Address or Target Domain Name that is the subject of the notice.

8.    A Respondent will not be in breach of Order 1 if it temporarily declines or temporarily ceases to take the steps ordered in Order 1 (either in whole or in part) upon forming the view, on reasonable grounds, that suspension is necessary to:

(a)    maintain the integrity of its network or systems or functioning of its blocking system;

(b)    upgrade, troubleshoot or maintain its blocking system;

(c)    avert or respond to an imminent security threat to its networks or systems; or

(d)    ensure the reliable operation of its ability to block access to online locations associated with criminal content if it reasonably considers that such operation is likely to be impaired, or otherwise to comply with its statutory obligations including under section 313(3) of the Telecommunications Act 1997 (Cth),

provided that:

(e)    unless precluded by law, it notifies the Applicant or their legal representative(s) of such suspension, including the reasons and the expected duration of such suspension, by 5.00 pm on the next business day; and

(f)    such suspension lasts no longer than is reasonably necessary and, in any case, no longer than 3 business days or such period as the Applicant may agree in writing or the Court may allow.

9.    The owner or operator of the Online Location and the owner or operator of any website who claims to be affected by these Orders may apply on 3 days' written notice, including notice to all parties, to vary or discharge these Orders, with any such application to:

(a)    set out the orders sought by the owner or operator of the Online Location or affected website; and

(b)    be supported by evidence as to:

(i)    the identity of the owner or operator of the Online Location or affected website; and

(ii)    the basis upon which the variation or discharge is sought.

10.    The parties have liberty to apply on 3 days' written notice, including, without limitation, for the purpose of any application:

(a)    for further orders to give effect to the terms of these Orders;

(b)    for further orders in the event of any material change of circumstances including, without limitation, in respect of the consequences for the parties and effectiveness of the technical methods under Order 2; and/or

(c)    for orders relating to other means of accessing the Online Location not already covered by these Orders.

11.    If a website the subject of the Online Location is at any time during the operation of these Orders provided from a different Domain Name, IP Address or URL, the Applicant may, by its solicitor:

(a)    provide a notice in writing to the Respondents and the Court that:

(i)    identifies the different Domain Name, IP Address or URL; and

(ii)    certifies that, in the good faith belief of the Applicant, the website operated from the different Domain Name, IP Address or URL is a new location for the Online Location the subject of these Orders and brief reasons therefore;

(b)    within 7 business days of the notice given pursuant to Order 11(a), the Respondents must notify the Applicant and the Court in writing if:

(i)    they object to taking steps pursuant to Order 1 to disable access to the Domain Name, IP Address or URL notified in accordance with Order 11(a); or

(ii)    they seek an order requiring the Applicant to pay their compliance costs of taking steps pursuant to Order 1 to disable access to the Domain Name, IP Address or URL notified in accordance with Order 11(a);

(c)    if any Respondent objects to disabling a Domain Name, IP Address or URL notified in accordance with Order 11(a), or seeks an order requiring the payment of compliance costs, or the Court otherwise considers it appropriate to do so, the proceeding will be relisted for further directions; and

(d)    if, within the time period specified in Order 11(b) no Respondent objects to disabling access to any Domain Name, IP Address or URL notified in accordance with Order 11(a), or seeks an order requiring the payment of compliance costs, and the Court does not otherwise require the proceeding to be relisted, then upon receipt of a notification from the Applicant that the Court does not require the matter to be relisted, the Respondents must take steps pursuant to Order 1 to disable access to the Domain Name, IP Address or URL notified in accordance with Order 11(a).

12.    These Orders are to operate for a period of 5 years from the date of these Orders.

13.    No less than 2 months prior to the expiry of these Orders:

(a)    the Applicant may file and serve:

(i)    an affidavit which states that, in the good faith belief of the deponent, the Online Location continues to facilitate the provision of academic cheating services; and

(ii)    short minutes of order extending the operation of these Orders for a further 5-year period; and

(b)    the process contained in Order 15 shall apply.

14.    The affidavit referred to in Order 13 is to be given by a deponent duly authorised to give evidence on behalf of the Applicant and may be given by their solicitor.

15.    If an affidavit and short minutes of order are filed and served in accordance with Order 13:

(a)    within 7 business days, the Respondents must notify the Applicant and the Court if they object to the Orders being made in accordance with the short minutes of order served by the Applicant;

(b)    if any Respondents give notice of any objection, or the Court otherwise thinks fit, the proceeding will be relisted for further directions;

(c)    if no Respondent gives notice of any objection and the Court does not otherwise require the proceeding to be relisted, then the Court may make orders in terms of the short minutes of order served by the Applicant without any further hearing; and

(d)    the Applicant must serve on the Respondents any such orders made.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J:

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.

7    For the reasons below, I am satisfied that the orders sought ought to be made.

Evidence

8    TEQSA read the following affidavits in support of its application:

(1)    Affidavits of Jillian Grace Pritchard, dated 28 July 2021 and 17 September 2021, and their exhibits JGP-1 and JGP-2. Ms Pritchard is an Assistant Director, Compliance and Investigations at TEQSA and gives the most of the substantive evidence relied on, including as to the activities of the Online Locations and TEQSA’s investigations. She also sets out the functions of TEQSA which include the maintenance of the National Register of Higher Education Providers, and some publications regarding the harm caused by academic cheating and the public interest in preventing the advertising of academic cheating services.

(2)    Affidavits of Adam Ian Zwi made on 27 July 2021, 17 September 2021 and 29 September 2021, and their exhibits AIZ-1 and AIZ-2. Mr Zwi is a Senior Lawyer at the Australian Government Solicitor and gives evidence of matters including the correspondence between the parties and notification of the operators of the Online Locations.

Relevant statutory scheme

9    This application is made pursuant to s 127A, which is relevantly in the following terms:

127A    Injunctions relating to online locations that facilitate provision of, or advertising of, academic cheating services

Application for an injunction

(1)    TEQSA may apply, on behalf of the Commonwealth, to the Federal Court to grant an injunction that requires a carriage service provider to take such steps as the Court considers reasonable to disable access to an online location that contravenes, or facilitates a contravention of, section 114A or 114B.

(2)    The application under subsection (1) may also request that the injunction require an online search engine provider (other than a provider that is covered by a declaration under subsection (11)) to take such steps as the Court considers reasonable so as not to provide a search result that refers users to the online location.

Granting the injunction

(3)    The Court may grant the injunction in the terms, and subject to the conditions, that the Court considers appropriate.

Note 1:    For the matters that the Court may take into account when determining whether to grant the injunction, see subsection (7).

Note 2:    The terms and conditions of the injunction that apply to a carriage service provider under subsection (1) may be different from those that apply to an online search engine provider under subsection (2).

(4)    Without limiting subsection (3), the injunction may:

(a)    require the carriage service provider to take reasonable steps to do either or both of the following:

(i)    block domain names, URLs and IP addresses that provide access to the online location and that are specified in the injunction;

(ii)    block domain names, URLs and IP addresses that the carriage service provider and TEQSA agree, in writing, have started to provide access to the online location after the injunction is made; and

(b)    require the online search engine provider to take reasonable steps to do either or both of the following:

(i)    not provide search results that include domain names, URLs and IP addresses that provide access to the online location and that are specified in the injunction;

(ii)    not provide search results that include domain names, URLs and IP addresses that the online search engine provider and TEQSA agree, in writing, have started to provide access to the online location after the injunction is made.

Parties

(5)    The parties to an action under subsection (1) are:

(a)    TEQSA; and

(b)    the carriage service provider; and

(c)    if the application under subsection (1) also sought for the injunction to apply against an online search engine provider—the online search engine provider; and

(d)    the person who operates the online location if, but only if, that person makes an application to be joined as a party to the proceedings.

Service

(6)    TEQSA must notify:

(a)    the carriage service provider; and

(b)    if the application under subsection (1) also sought for the injunction to apply against an online search engine provider—the online search engine provider; and

(c)    the person who operates the online location;

of the making of an application under subsection (1), but the Court may dispense, on such terms as it sees fit, with the notice required to be sent under paragraph (c) if the Court is satisfied that TEQSA is unable, despite reasonable efforts, to determine the identity or address of the person who operates the online location, or to send notices to that person.

Matters to be taken into account

(7)    In determining whether to grant the injunction, the Court may take the following matters into account:

(a)    whether disabling access to the online location is a proportionate response in the circumstances;

(b)    if the application under subsection (1) also sought for the injunction to apply against an online search engine provider—whether not providing search results that refer users to the online location is a proportionate response in the circumstances;

(c)    the impact on any person, or class of persons, likely to be affected by the grant of the injunction;

(d)    whether it is in the public interest to disable access to the online location;

(e)    if the application under subsection (1) also sought for the injunction to apply against an online search engine provider—whether it is in the public interest not to provide search results that refer users to the online location;

(f)    whether TEQSA complied with subsection (6);

(g)    any other remedies available under this Act;

(h)    any other matter prescribed by the regulations;

(i)    any other relevant matter.

Rescinding and varying injunctions

(8)    The Court may:

(a)    limit the duration of; or

(b)    upon application, rescind or vary;

an injunction granted under this section.

(9)    An application under subsection (8) may be made by:

(a)    any of the persons referred to in subsection (5); or

(b)    any other person prescribed by the regulations.

(10)    An application under subsection (8) must not request the Court to vary the injunction so that it applies to an online search engine provider that is covered by a declaration under subsection (11).

Declarations excluding online search engine providers

(11)    The Minister may, by legislative instrument, declare that:

(a)    a particular online search engine provider; or

(b)    an online search engine provider that is a member of a particular class;

must not be specified in an application under subsection (1) or (8).

Costs

(12)    A carriage service provider or, if applicable, an online search engine provider is not liable for any costs in relation to the proceedings unless the provider enters an appearance and takes part in the proceedings.

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.

13    The starting point for the ascertainment of the meaning of a statutory provision is its text, having regard to its context and purpose: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 (SZTAL) at [14] citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]-[71], Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47] and CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408.

14    As to the meaning to be given to words in a statute, the plurality in SZTAL at [14] observed:

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

15    There is no definition of ‘online location’ in the TEQSA Act. In ordinary parlance the phrase would no doubt encompass websites. This is reflected by its use in the provision. Considering the phrase in its context (which includes what an injunction may do) and given the purpose of the provision, it would plainly encompass websites.

16    I note that in respect to s 115A of the Copyright Act, which similarly uses the phrase ‘online location’ but which is also not defined, Nicholas J in Roadshow Films Pty Ltd v Telstra Corporation Ltd [2016] FCA 1503; (2016) 248 FCR 178 (Roadshow 2016), considered this concept at [53]. To place that passage in its context, it is appropriate to also recite the preceding paragraph:

[52]    However, in my view, the words “provides”, “infringes” and “facilitates” as they appear in s 115A(1)(a) and (b) are neutral in temporal meaning in that they may apply to past as well as to present conduct. Part V of the Act contains other instances of such usage: see, for example, s 116B(1)(a) (“a person receives”), s 132AC(1)(a) (“engages in conduct”), s 132(1)(a) (“makes an article”).

[53]    As previously mentioned, the term “online location” is not defined. In my view it can include a location, such as a website, that was online at the time the relevant proceeding was commenced but is not online either at the time of the hearing or at the time of granting the injunction. The Revised Explanatory Memorandum recognises that s 115A is “deliberately prescriptive” and that it provides a “precise response to a specific concern raised by copyright owners.” However, when interpreting s 115A it is necessary to consider the purpose of the provision, which is to provide an efficient means of blocking access to online locations operated outside Australia that have as their primary purpose the infringement, or the facilitation of the infringement, of copyright. Too narrow a reading of the language used in s 115A(1) would deprive the section of much of its usefulness eg. if it were construed so as to allow an operator to avoid an injunction simply by taking a website off-line temporarily for a period of days, weeks or months during the course of the relevant proceeding.

17    Paragraph [53] addresses not only the meaning of the term ‘online location’ in the context of s 115A, but also whether it has a temporal element. That is, online location in this context is not limited to websites that are currently online at the time of the hearing or when orders are made. Those comments, and in particular, that the utility of the provision would be reduced if otherwise interpreted, are similarly apt to s 127A. I will return to this topic below, as the evidence in this case illustrates why that would be so.

18    Section 127A applies to contraventions and facilitating a contravention of ss 114A and 114B. Facilitates would in ordinary parlance be readily understood to mean, to make easier, to promote, to assist to bring about, or to help forward an action: see for example Oxford English Dictionary (Online); Macquarie Dictionary (Online). It is a term not uncommonly used in criminal offence provisions. The term is used to broaden the scope of actions encompassed by the provision. Considering the term in its context, and given the purpose of the provision, that ordinary meaning would apply.

19    Again, such language is similarly employed in s 115A of the Copyright Act. In that context, Burley J in Universal Music Australia Pty Ltd v TPG Internet Pty Ltd [2017] FCA 435; (2017) 348 ALR 493 described the term at [18] as “deliberately broad”. Burley J cited Nicholas J in Roadshow 2016 at [47] where his Honour observed:

Even if the online location does not itself infringe copyright, the requirements of s 115A(1)(b) may be satisfied if the online location “facilitates” an infringement of copyright. The language used is deliberately broad. The word “facilitate” means “to make easier or less difficult; help forward (an action or process etc)”: Macquarie Dictionary (6th ed, 2013) at 525. In determining whether an online location facilitates the infringement of copyright, the Court will seek to identify a species of infringing act and ask whether the online location facilitates that act by making its performance easier or less difficult. An online location may both infringe and facilitate the infringement of copyright by making an electronic copy of a work or other subject matter available online for transmission to users. But it may also facilitate the infringement of copyright merely by making it easier for users to ascertain the existence or whereabouts of other online locations that themselves infringe or facilitate the infringement of copyright.

20    Applying that to s 114B(2), to the context of this case, an online location could ‘facilitate’ a contravention by making easier the performance of the operator’s advertising of an academic cheating service, or by making easier a user’s ability to find it.

21    While addressing the statutory scheme, various terms and phrases in s 114B are defined in s 5 of the TEQSA Act. Relevantly, are the following:

academic cheating service means the provision of work to or the undertaking of work for students, in circumstances where the work:

(a)    is, or forms a substantial part of, an assessment task that students are required to personally undertake; or

(b)    could reasonably be regarded as being, or forming a substantial part of, an assessment task that students are required to personally undertake.

assessment task means an assignment, essay, examination, practicum, presentation, project or any other assessable part of a course of study, whether mandatory or optional.

Australian course of study means:

(a)    a single course leading to an Australian higher education award; or

(b)    a course recognised by the higher education provider at which the course is undertaken as a combined or double course leading to one or more Australian higher education awards.

Example:    An example of a combined or double course covered by paragraph (b) is a course that leads to the Australian higher education awards of Bachelor of Arts and Bachelor of Laws.

higher education award means:

(a)    a diploma, advanced diploma, associate degree, bachelor degree, undergraduate certificate, graduate certificate, graduate diploma, masters degree or doctoral degree; or

(b)    a qualification covered by level 5, 6, 7, 8, 9 or 10 of the Australian Qualifications Framework; or

(c)    an award of a similar kind, or represented as being of a similar kind, to any of the above awards;

other than an award offered or conferred for the completion of a vocational education and training course.

higher education provider means:

(a)    a constitutional corporation that offers or confers a regulated higher education award; or

(b)    a corporation that:

(i)    offers or confers a regulated higher education award; and

(ii)    is established by or under a law of the Commonwealth or a Territory; or

(c)    a person who offers or confers a regulated higher education award for the completion of a course of study provided wholly or partly in a Territory.

Consideration

22    Against that background I turn first to the evidence and whether it satisfies the requirements of the provision.

23    I accept the evidence of Ms Pritchard. Ms Pritchard undertook an investigation of the Online Locations using her home computer in Victoria over a period of several months and has taken screenshots of both websites at various times.

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.

29    As previously noted, TEQSA contend that the two domain addresses are in effect the same. The timing and context in which the second address became operative is referred to above. In summary, the sequence of events was as follows:

(1)    On 15 June 2021, prior to the commencement of these proceedings, Mr Zwi accessed the “contact us” page on ‘assignmenthelp4you.com’, which provided an email address ‘expertsassignmenthelp@gmail.com’, to which he sent an email attaching a letter. In that letter, Mr Zwi set out the relevant legislation, and why in TEQSA’s view the website contravenes at least s 114B(2) of the TEQSA Act. That letter asked the operator of the website ‘assignmenthelp4you.com’ to confirm by 22 June 2021 that they had ceased advertising, publishing or broadcasting an advertisement for an academic cheating service to students undertaking an Australian course of study with a higher education provider. It also notified the operator that, if it did not provide the aforementioned confirmation, TEQSA may commence these proceedings. The website, given the nature of its business, wished people to contact it to obtain its services and provided a contact email address for that purpose. In that context, it can be inferred, therefore, that if correspondence is made through the address provided on the website it is likely to be received. No response was received.

(2)    On 9 July 2021, after these proceedings were commenced in relation to the ‘assignmenthelp4you website’, Mr Zwi sent a further email to the contact address of ‘assignmenthelp4you.com’ informing them that these proceedings had been instituted, and attached the originating application and concise statement filed on 5 July 2021. No response was received.

(3)    Later that day, on 9 July 2021, Mr Zwi became aware that the online location was not accessible at the URL ‘www.assignmenthelp4you.com’.

(4)    On 14 July 2021, when Ms Pritchard attempted to access the online location by typing ‘www.assignmenthelp4you.com’ into the internet browser, the website was not accessible and she was redirected to a website advertising that the domain name was for sale. On 14 July 2021, the online location ‘assignmenthelp2u.com’ was first accessed. Ms Pritchard observed relevant similarities between ‘assignmenthelp4you.com’ and ‘assignmenthelp2u.com’.

(5)    On 27 July 2021, Mr Zwi sent a letter by email to ‘info@assignmenthelp2u.com’ and ‘expertsassignmenthelp@gmail.com’. The email, inter alia, described the proceedings on foot concerning ‘assignmehthelp4you.com’, and provided the originating application and concise statement filed on 5 July 2021. The letter informed the Online Locations that TEQSA would apply to the Court for leave to amend the originating application in respect to the online location in so far as it was accessible at the URL ‘assignmenthelp2u.com’. Copies of the proposed amended originating application and the amended concise statement were enclosed. The Online Locations were informed of the case management hearing in the proceedings listed for 9 am on 29 July 2021.

(6)    On 29 July 2021, as a result of orders made at the case management hearing, TEQSA filed an amended originating application and concise statement in this proceeding, which included seeking orders in respect to ‘assignmenthelp2u.com’. Later that same day, Mr Zwi sent a letter by email to both the ‘info@assignmenthelp2u.com’ and ‘expertsassignmenthelp@gmail.com’ addresses attaching the orders made at the case management hearing and the amended originating application and amended concise statement.

(7)    On 9 August 2021, Ms Pritchard attempted to access the homepage of the online location by entering ‘www.assignmenthelp2u.com’ into her internet browser, but was unable to access the home page of the website. However, Ms Pritchard was able to access the underlying ‘Company Profile’ and ‘Services’ web pages. On 30 August 2021, Ms Pritchard again attempted to access the homepage of the online location by entering ‘www.assignmenthelp2u.com’ into her internet browser, but the page was blank. She was, however, able to access the ‘Management’ and ‘Services’ pages. On 3 September 2021, Ms Pritchard again accessed the ‘Company Profile’ page of ‘www.assignmenthelp2u.com’.

30    I note for completeness that Mr Zwi also undertook a number of other steps in an attempt to communicate with the Online Locations.

31    In addition, Ms Pritchard also provides evidence from which it can be inferred that ‘assignmenthelp2u.com’ is simply another iteration of ‘assignmenthelp4you.com’. This includes for example, the same spelling errors appearing on both sites, and a reference on the ‘assignmenthelp2u.com’ webpage to “Assignementhelp4you, world’s leading educational platform”. The online location at ‘assignmenthelp2u.com’ also includes a list of tertiary education institutions which is very similar to that included on ‘assignmenthelp4you.com’ and includes many higher education institutions.

32    The similarity, and at times identical aspects of the ‘assignmenthelp2u.com’ site, in addition to the timing and context in which it became accessible, readily gives rise to the conclusion that the site is another iteration of the first site.

33    I am satisfied that this site also advertised an academic cheating service as defined in the TEQSA Act, and expressly did so to students in Australia, amongst others, of higher education providers.

34    Pausing there, as apparent from the chronology above, TEQSA has notified the operators of the Online Locations of the application, pursuant to s 127A(6)(c) of the TEQSA Act. The evidence establishes that this first occurred prior to commencement of the proceeding; again after the commencement of the proceeding; and again after amending the originating application and concise statement. As apparent from the above chronology, these communications have included provision of the amended originating application and amended concise statement and the Court’s orders of 29 July 2021 (which included the listing for final hearing on 29 September 2021).

35    The evidence reflects that no response has been received from the Online Locations. Nonetheless, I accept TEQSA’s submission that the Court can infer from the timing of changes to the websites vis-à-vis the timing of the communications, that the notifications have been received. In any event, even if I had not accepted that submission, the applicant has plainly established that reasonable efforts have been undertaken to serve the application, such that an order would have been made dispensing with the requirement.

36    Ms Pritchard’s evidence is that it appears there is a notice suggesting that the domain name ‘assignmenthelp4you.com’ is, or may be, for sale. As discussed earlier at [16]-[17], s 127A is temporally neutral. I there referred, inter alia, to the observations of Nicholas J in Roadshow 2016 at [52]-[53]. I add to that Nicholas J’s approach in Roadshow Films Pty Ltd v Telstra Corporation Ltd [2017] FCA 965 (Roadshow 2017) where his Honour was considering a further application for an order under s 115A in a context where six sites which were available when the proceedings commenced were no longer available at the time of hearing the application. In Roadshow 2017, Nicholas J concluded at [32]:

At paragraphs [52] and [54] of Roadshow No 1, I discussed the meaning and effect of s 115A(1)(a) and (b) of the Act from a temporal perspective. In this case, the six online locations … which were unavailable in May 2017 were, at the time the proceeding was commenced in February 2017, accessible using the respondents’ carriage services. There is no evidence before me to suggest that those six locations may not infringe or facilitate the infringement of copyright in the future. Insofar as the recent disablement of these locations is relevant to exercise of the discretion under s 115A(1), I agree with the applicants that, in this case, it is appropriate that orders be made in respect of these six online locations.

37    TEQSA submitted, and I accept, that there is no evidence to suggest that the operator of the Online Locations has permanently abandoned the website available at ‘assignmenthelp4you.com’ or that it is genuinely for sale to a third party (for a lawful use). Given what has occurred to date, there is every reason to infer that if the Court orders ‘assignmenthelp2u.com’ to be blocked but not ‘assignmenthelp4you.com’, the operator would recommence the contravening conduct from the latter site. This is in a context where the Online Locations failed to respond to TEQSA’s request that they undertake to cease providing academic cheating services in contravention of s 114B(2), moved to ‘assignmenthelp2u.com’ very shortly after notification of the proceeding and removed the homepage of ‘assignmenthelp2u.com’ (but left online the substantive pages that sit under the home page, such as ‘assignmenthelp2u.com/services’) within days of service of the amended originating application and amended concise statement extending the orders sought by TEQSA to that site. The evidence establishes that the Online Locations are linked, and the conduct of the operators reflects an intent to continue to operate with steps having been taken, responsive to these proceedings, to enable that to occur despite these proceedings.

38    I accept TEQSA’s submission that it is appropriate to block access to ‘assignmenthelp4you.com’ even though the most recent evidence suggests that it may not presently be facilitating the contravening conduct. Despite the homepage of ‘assignmenthelp2u.com’ being unavailable, critical webpages of that site are still accessible. The webpages are readily accessible as they appeared on the first page of search results when Ms Pritchard searched, in early September 2021, for ‘assignmenthelp2u’ via the Google search engine. The evidence establishes blocking access to that domain name will block access to the webpages underlying it.

39    Turning to the discretionary factors.

40    As TEQSA submitted, the factors identified in s 127A(7) which may have application, are: whether disabling access to the online location is a “proportionate response in the circumstances”: s 127A(7)(a); whether it is in the public interest to disable access to the online location: s 127A(7)(d); whether TEQSA complied with s 127A(6): s 127A(7)(f); and any other remedies available under the TEQSA Act: s 127A(7)(g).

41    The issue of compliance with the notice requirements in s 127A(6) has been addressed above.

42    The evidence establishes that each of the domain name registrant is located in India. In that context, as to other remedies, it appears on the evidence that the Online Locations are operated by a person or persons located in India which, as TEQSA submitted, would make direct action against them difficult, if not impossible, and certainly not efficient.

43    The objects of the TEQSA Act are set out in s 3, which includes the protection and enhancement of Australia’s reputation for quality higher education services and the protection and enhancement of the academic integrity of courses provided by higher education providers. An injunction in the circumstances would advance those aims.

44    The relevant Explanatory Memorandum describes the threats posed by academic cheating services, which these provisions were designed to address. For example, at 20-21 of the Explanatory Memorandum it is stated that:

Item 26 inserts a new section 127A into the TEQSA Act, which deals with injunctions relating to online locations that facilitate the provision or advertising of academic cheating services. This will make it more difficult for Australian internet users to find and use websites that offer academic cheating services. Web-based academic cheating service provision is by far the most prevalent model of paid cheating service operation. Custom essay writing websites are sophisticated and operate across international borders, with the client, business platform (e.g. website) and content providers distributed across multiple jurisdiction.

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 and online search engine providers is an action that can be taken from within Australia and will go some way to reducing their availability and impact. Research from 2019 looking at the provision of cheating services on a freelance basis, found over 5,000 contractors were offering academic writing services on one ‘auction’ style website alone; and noted that a high proportion of these contractors were from one overseas country.

45    The outline to the Bill amending the TEQSA Act to include s 114B and s 127A, amongst other things, referred to implementing the recommendations of the Higher Education Standards Panel to introduce deterrence to third party cheating services. As the Bill explains, “[t]he growing availability and provision of academic cheating services poses a significant threat to the integrity and reputation of the global higher education sector, including Australia’s both domestically and internationally”. Further, the Bill explains “[t]here are also significant public confidence and safety risks, should a graduate who does not have the required skills and knowledge (and who engaged in academic cheating during their studies) go on to a professional career in a position of public trust or assurance”.

46    There is an obvious public interest in granting the injunction.

47    In my view the discretionary factors favour the granting of the injunction in the terms sought.

48    As previously indicated, no CSP opposes the orders. Nor is there any opposition to the terms of the orders sought.

Conclusion

49    I am satisfied that TEQSA has satisfied the statutory requirements for the grant of an injunction and that an order in the terms sought ought to be made.

Associate:

Dated:    7 October 2021

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