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.