Successive Commonwealth governments have been creative in finding ways to by-pass the Constitution. That has been very necessary in education, which was originally intended to remain a State responsibility.  The Commonwealth has no direct power to legislate on an education topic other than in the territories. This creates legal issues for the Commonwealth’s attempts to ban commercial cheating. Draft legislation was released at the weekend.

The Commonwealth’s main vehicles for education policy have been section 96 tied grants to the States (no longer used for higher education, but still used for school and vocational education), the section 51(xx) power to legislate on foreign, trading and financial corporations (which relies on universities being trading corporations; this power could collapse if they went back to full public funding) and section 51 (xxiiiA), the ‘benefits to students’ power, which is the main legal basis of Youth Allowance, the Commonwealth Grant Scheme, and HELP.

Because the Commonwealth can fully legislate for the territories, the draft bill would be effective in the ACT and the Northern Territory. But in the states the legal situation is more difficult.

Of the usual sources of education law, only the corporations power is of potential assistance in banning commercial cheating, but would rely on the cheating service being incorporated, which it probably isn’t now and wouldn’t be in the future if that exposed it to 2 years jail, as the draft bill proposes.

The other constitutional powers proposed in the draft bill similarly create loopholes. Section 51(i) of the Constitution gives the Commonwealth power to regulate international trade and trade between the states. So overseas and interstate essay writing services are in trouble, but not necessarily within-state operations.

Section 51(v) of the Constitution gives the Commonwealth power to make laws for postal and electronic communications, and this is likely to be one of the more effective legal powers in stopping the promotion and conduct of cheating services. But with most cheating involving people the student already knows, the international/interstate/electronic powers have limits.

The laws will also apply if the student or the person providing the cheating service is an ‘alien’ under section 51(xix) of the Constitution. The High Court has generally interpreted this to cover non-citizens. International students are more likely than domestic students to cheat, and media reports suggest that they are the main target market of commercial cheating services.

Nevertheless, relying on the aliens power means that two citizens contracting to cheat would not break the law if they a) stay within a state and b) stay clear of the internet and their phones in organising it. This is a gap in the enforcement framework and an undesirable double standard.

The parliamentary counsel have been as inventive as they can be within the Constitution in banning commercial cheating. But with so many loopholes left State legislation might have been simpler and more effective.