Is bottom-pinching still ‘indecent’ by today’s community standards?



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It wasn’t okay to touch people inappropriately in the 1970s and 80s, and it still isn’t now.
Elen Tkacheva/Shutterstock

Hadeel Al-Alosi, Western Sydney University

In a recent court case in Western Australia, Magistrate Michelle Ridley ruled that “in an era of twerking” and easy access to pornography, it was not an indecent assault when a police officer pinched a woman’s backside.

Here’s what happened. In December 2017, 48-year-old police officer of 17 years, Andrew Ramsden, participated in a yearly wheelchair basketball charity event. After the game, the anonymous complainant asked if she could have a “serious photo” with other members of the police team.




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But when posing for the photo, Ramsden thought it would be funny to startle her by pinching her buttocks, and she jumped forward in surprise when he did so. Ramsden reportedly then said to her either “I hope you take this the right way” or “don’t take this the wrong way”.

He was charged with “unlawfully and indecently assaulting another person” under section 323 of the Criminal Code (WA). And he was eventually found not guilty.

But twerking, grinding, and the easy availability of pornography should never be an excuse for sexual harassment. This argument effectively shifts the blame on victims and implies that the sexualisation of society means women consent to being sexually harassed, which is far from the truth.

And in the era of the #MeToo movement, where women are holding men to account for sexual harassment, it seems the court in the Ramsden case hasn’t caught up to this wider cultural shift.

What is considered ‘indecent’?

Determining if an act is “indecent” requires considering the intention of the accused.




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The courts have stated for an assault to be indecent there

must be a sexual connotation to the activity. It must be an activity which offends community standards of propriety prevailing at the relevant time.

In Ramsden’s case, the magistrate held that the act was not indecent because it was not done for a sexual purpose. And the WA Supreme Court recently upheld the magistrate’s decision, and acquitted him.

The magistrate and the Supreme Court rejected the prosecution’s argument:

the prevailing standards of the community today are that any touching by a man of the buttocks of a woman is inherently indecent.

It has never been okay

Determining community standards is best left to a jury rather than a single judge or magistrate to help ensure “the application of the law is fair and consistent with community standards”. However, no jury was used in Ramsden’s case, so it was up to the magistrate alone to decide whether today’s community would regard pinching a person’s bottom as indecent.

Magistrate Ridley said in the 1970s and 1980s, “a pinch on the bottom was naughty and seen as overtly sexual and inappropriate for that time”. But added nowadays “the thought of a pinch on the bottom is almost a reference to a more genteel time”.

Magistrate Ridley believed pinching a person’s backside lost its overtly sexual connotation “in an era of twerking and grinding, simulated sex and easy access to pornography”.

But it wasn’t okay to touch people inappropriately then, and it still isn’t now.

The worldwide #MeToo movement, which the prosecution referred to in the trial, is just one example showing the significant cultural shift in societal views of sexual harassment.

On appeal, the Supreme Court accepted the movement had led to an

increase in the number of complaints by women and to increase awareness of the unacceptability of such acts and conduct.

However, it held that no evidence was put forward to the magistrate

upon which a finding could be made that the effect of the movement itself had resulted in a change in community standards as to the ‘acts’ and ‘conduct’ that should, at law, be deemed ‘indecent’.

Cultural change takes time. The #MeToo movement is a positive step in changing how we respond to sexual assault. Implying pornography and dancing excuses sexual harassment is a step backwards.

University of Technology Sydney criminal law lecturer Dr Katherine Fallah criticised the Ramsden decision. In an interview on Triple J, Fallah made an excellent point, arguing:

The statement about twerking and about porn are offered in a fairly derisory way of talking about things that are very remote from the facts of the case – here we have a woman having a photo taken after … a wheelchair basketball charity event.

The bottom line

A person’s backside is an intimate part of one’s body and no one should have to tolerate unwanted contact of their private parts for someone else’s amusement.

The Ramsden case fails to reinforce this message because of the definition of “indecency”, which requires a sexual motive for the act.




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Australian legislators need to step in and make it clear that deliberately pinching a person’s backside is a form of sexual harassment. Without consent, such conduct is unacceptable, regardless of whether it is done for a sexual purpose or in a poor attempt at humour.

The bottom line is that “bum pinching isn’t — and has never been OK”.The Conversation

Hadeel Al-Alosi, Lecturer, School of Law, Western Sydney University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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The Catholic Church is investigating George Pell’s case. What does that mean?


Ian Waters, University of Divinity

Cardinal George Pell was this week sentenced by a Victorian court to six years’ jail for sexually abusing two choirboys, with a non-parole period of three years and eight months.

Although Pell was found guilty of the charges against him in December, he has remained a Cardinal in the Catholic Church. The Church previously said it would await the outcome of an appeal before taking action, but it has since confirmed that an investigation of Pell’s case will be conducted by the Congregation for the Doctrine of the Faith.

An American former cardinal was recently expelled from the priesthood by the Church following a canonical trial into claims of child sexual abuse. Here’s what it could look like if Pell was subject to a similar process.




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Canonical trials are governed by the rules of the Church

Most cases concerning the wrongdoing of Catholics are tried in secular courts. The decisions and punishments handed down by the courts are normally accepted by the Church as sufficient.

But the Church will conduct its own examination of cases where the church’s canon law requires punishment outside the competence of the courts of the land. That includes the excommunication of a member of the church, or the dismissal of a priest or bishop from the clerical state – often referred to as defrocking.

Tribunals to adjudicate matters that concern the Church’s own internal governance are principally governed by the rules and regulations of the Church, which are known as canon law (from the Greek etymology κανών or kanon, meaning a “rule”). These regulations are set out in the Church’s Code of Canon Law, which came into effect in 1983.

Since such trials are conducted because of the requirements of canon law, they are known as “canonical trials”.




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Sexual abuse cases are handled by the Holy See

Catholic Church tribunals are normally held in the diocese of the parties to the case. The bishop of the diocese can judge cases for his diocese. But since bishops often have little or no in-depth knowledge of canon law, most cases in Catholic Church tribunals are handled by judges (clerics or laypersons) appointed by the bishop. The presiding judge is a priest known as the judicial vicar.

Some matters cannot be introduced at a diocesan tribunal, but are reserved for the various tribunals at the Holy See. This includes cases involving dioceses and bishops, and certain serious matters regarded as crimes in the Catholic Church. Examples of this would be matters of sacrilege (offences against the sacraments), and sexual offences by a cleric against a minor under the age of 18.

A college of judges try difficult cases

Usually a single judge presides over contentious and penal cases. But a college of three or five judges will normally try more complicated or difficult cases – especially if the prescribed penalty is an excommunication from the Church, the dismissal of a cleric, or if the case concerns the annulment of a marriage or an ordination.

Other officers of the tribunal include the promoter of justice, who is the prosecutor in penal cases. The tribunal also has notaries who swear in witnesses, and commit their testimony to writing.

Like any legal system, parties in a case have the right to appoint an advocate who can argue for them at the tribunal. If a person cannot afford an advocate, the tribunal can assign one to them free of charge.




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Defendants are presumed innocent

Catholic Church tribunals do not use the adversarial system used by the courts of the common law tradition. Rather, Catholic Church tribunals use the inquisitorial system law found in most European legal systems. That means the judges lead the investigation.

The standard of proof used by the Catholic Church tribunals is “moral certainty”. Certainty results from examination in good conscience of the available evidence. This isn’t the same as “absolute certainty”, but it’s more than mere probability. It is normally stricter than guilt “beyond reasonable doubt”, which is usually held to be the absence of doubt based on reason and common sense.

As a general rule, the defendant has the presumption of innocence, which means the defendant will win by default unless a majority of the judges is convinced with moral certainty of the petitioner’s case.The Conversation

Ian Waters, Professor, Lecturer, Department of Moral Theology and Canon Law, University of Divinity

This article is republished from The Conversation under a Creative Commons license. Read the original article.

National Redress Scheme for child sexual abuse protects institutions at the expense of justice for survivors


Kathleen Daly, Griffith University and Juliet Davis, Griffith University

Australians can be proud of what the Royal Commission into Institutional Responses to Child Sexual Abuse accomplished, but they cannot be proud of the National Redress Scheme (NRS).

With the Joint Select Committee’s review of the NRS set to be released in the coming weeks, it’s important to look back on how the NRS emerged and the ways it strayed from the recommendations of the royal commission.

In September 2015, the royal commission released its report on redress and civil litigation. It proposed a redress scheme with three elements: a direct personal response, counselling and psychological care, and a monetary payment.




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And it set forth principles to guide redress, such as being “survivor-focused” by providing justice to survivors and not protecting the interests of institutions.

On June 19 2018, the NRS bill passed with bipartisan support in both houses of parliament, but it did not adhere to these principles, nor reflect the spirit of what the royal commission had recommended.

Protecting the interests of institutions ultimately prevailed over providing justice to survivors.

So how and why did this happen?

Creating a national scheme

Creating a national scheme was a complicated exercise. To do so, Australian states had to refer their legislative power for redress to the Commonwealth. Without state referral, non-Commonwealth institutions – both government and non-government – could not participate.

The Commonwealth began negotiating with the states in January 2016. In November that year, then Attorney-General George Brandis and then Minister for Social Services Christian Porter issued a press release announcing that a Commonwealth Redress Scheme (CRS) would be established.

The release said the maximum payment would be $150,000, not the $200,000 figure the royal commission had recommended.

That day, Porter held a press conference where he was asked to explain why the maximum was reduced. He said:

we have had intensive negotiations with the states and territories, and with churches and charities. And we were trying to design a monetary redress payment that offered appropriate recognition, but maximised our opportunity to get other organisations to opt-in to the scheme.

In October 2017, the CRS bill was introduced into parliament. The government’s strategy was to move the bill along while at the same time encouraging states and non-government institutions to opt-in to the scheme. If no states did so by July 1 2018, the scheme would be for survivors of abuse in Commonwealth institutions only.

That day, Porter was asked on ABC radio why people with convictions for sexual offences or other serious crimes were not eligible for the scheme. Porter explained that the decision was made in “deep consultation” with state attorneys-general who were of the “almost unanimous” view that to “give integrity and public confidence to the scheme”, there needed to be limitations for those who “had committed serious crimes, particularly sexual offences”.

The exclusion was a condition for the states to opt-in, and a “powerful reason why [the] decision was made”, according to Porter.

In the same interview, he dropped another bombshell: counselling and psychological care would be capped at $5,000 per person. No explanation was given. The royal commission did not recommend a criminal history exclusion nor a cap on counselling.

As the CRS bill moved through parliament, media stories and submissions to the Senate Community Affairs Legislation Committee focused on the reduced maximum payment, criminal history exclusion, and cap on counselling. Concerns were also raised that the scheme was for sexual abuse only, and that important scheme details were to be contained in delegated legislation, or what is also termed “the rules”. This meant the minister would announce them at a future date, and they would not be subject to parliamentary scrutiny or debate.

Two crucial elements in the delegated legislation were the Assessment Framework and the Direct Personal Response Framework. The Assessment Framework assesses both the monetary payment and monetary support for counselling and psychological care. The Direct Personal Response Framework outlines a limited number of ways a responsible institution may engage with a survivor, including an apology or statement of regret, and steps taken to prevent abuse in the future.

It was not until August 13 2018, two months after the passage of the NRS, that these frameworks were tabled by the minister. Both departed strongly from what the royal commission had recommended.

The shift from a Commonwealth to a national scheme occurred in May 2018, when a COAG intergovernmental agreement on the NRS was signed by New South Wales and the ACT. New South Wales introduced legislation referring the power to make laws about redress to the Commonwealth.

Later that month, the NRS bill was introduced into federal parliament. A Senate review in March had called attention to gaps between what the Royal Commission had recommended and what was in the CRS bill. The NRS bill maintained and, at times, widened these gaps.

The widening gaps between the royal commission and the NRS

We identified 17 contentious matters in the NRS bill.

Five matters that received considerable attention were the maximum monetary payment, criminal history exclusion, cap on counselling, assessment framework, and the eligibility of sexual abuse only.

But 12 others were just as consequential.

They related to government and institutional responsibilities (funder of last resort and institutional opt-in timeframe); application and payment requirements (single application, indexation of payment, acceptance period, deed of release, lack of external review); other eligibility criteria (no application from gaol, citizenship and residency, age limit); scheme reporting; and the direct personal response.

All 17 matters departed from what the royal commission recommended except three: the eligibility of sexual abuse only, indexation of payment, and no external review.

The pressure points for the departures were economic and political costs to government and non-government participants, and to a lesser degree, the convenience of the scheme operator.

As the NRS legislation moved toward passage in June 2018, many politicians said it was “imperfect”, but they would support it. Such support was often couched in pro-survivor rhetoric. For example, Senator Louise Pratt said:

Survivors have in some instances waited all their lives for justice, and they should not have to wait a minute longer.

In fact, politicians’ hands were tied: they could not change the bill because this would require renegotiating the framework of redress decided by members of the state and federal executive. Such delay would jeopardise the Commonwealth’s promised start date of July 1 2018.

We want to see a fair and effective redress scheme. To make that happen, elements in the current scheme will need to change.

But is there any hope for change? Perhaps.

A bipartisan Joint Select Committee (JSC) on the Oversight of the Implementation of Redress Related Recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse has been receiving submissions and holding hearings over the past five months.




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The JSC has learned that survivors are having many problems applying to the scheme and understanding how best to present their case. Witnesses to the JSC and committee members themselves have expressed disbelief about the Assessment Framework: it privileges penetrative sexual abuse above all other types, and it caps the monetary support for counselling based on the type of abuse.

We provided evidence to the JSC of the many ways the NRS departs from the royal commission’s principles of redress.

We also provided evidence of how poorly the scheme compares with other world redress schemes in the ways it assesses the severity and impact of abuse, supports counselling, and excludes certain groups. Compared to numerous examples that the royal commission offered for the direct personal response, the NRS stuck to a bare minimum and severely weakened the power of this innovative redress element.

Will the JSC report, delivered in early April, produce findings that make politicians, the media, and the public take notice?

The timing is not optimal with a federal election looming and other matters taking greater precedence. Post-election, let’s hope that the failure of the NRS to provide justice to survivors receives the attention it deserves.The Conversation

Kathleen Daly, Professor of Criminology and Criminal Justice, Griffith University and Juliet Davis, Research Fellow, Griffith University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

How an appeal could uphold or overturn George Pell’s conviction


David Hamer, University of Sydney

A criminal trial often helps to provide finality for the accused, and closure for victims and society. But following this week’s news, George Pell’s barrister, Robert Richter QC, indicated Pell maintains his innocence and the legal team have already lodged an appeal. Richter said this would be pursued following Pell’s sentencing.

Pell’s conviction no longer appears final, but provisional. The Vatican initially said it would wait until the appeal outcome before launching its own investigation that could lead to the Cardinal being defrocked. But it has now been confirmed the investigation is starting regardless.

The Australian government, though, said it will only strip Pell of his Order of Australia honours if he loses the appeal. Meanwhile, the media and community are awash with confusion about the verdict that came in a retrial after the first trial concluded with a hung jury. It seems many people are holding their breath until the appeal is heard.

Defendants generally only get one appeal, though that one appeal may be taken further to the High Court. If Pell’s appeal is dismissed, he will require exceptional intervention from the Government, which is very rare.

So, what is an appeal, and what might it look like for someone with Pell’s profile and convictions?




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How long would an appeal take?

The appeal process is fairly elaborate. It requires the Court of Appeal’s leave (or approval). If given, the defence and prosecution will make written submissions to the court. There is then a hearing, on the basis of which the court will make a decision, explain its reasoning, and make appropriate orders.

In this case, the court may dismiss the appeal, allow the appeal and order a retrial, or allow the appeal and order that Pell be acquitted. With a crowded list of cases, this entire procedure often takes more than a year. The Pell appeal may be relatively simple and decided more quickly.

Bail was revoked pending sentencing, anticipating a custodial sentence, and Pell will remain in custody until the appeal. If the appeal is upheld, the court may make a decision immediately following the hearing and publish its reasons subsequently.

Evidence at the trial

The trial did not involve a great deal of evidence. One of the alleged victims had made a report to police in 2015, claiming the assaults occurred after mass. The other alleged victim died of an accidental heroin overdose in 2014, apparently without reporting abuse.

Like many delayed sexual assault cases – almost 20 years in this case – there simply isn’t much evidence available. At Pell’s trial, there seemed to have been little more than the complainant’s allegations and Pell’s denials. Pell did not testify. Video of his denials to police were played to the jury.

The jury may have preferred to see how Pell coped with cross-examination. But he has the right to silence, and his failure to enter the witness box can’t be used against him.

A few other witnesses gave evidence about the masses delivered by Pell at St Patrick’s Cathedral, where the abuse allegedly took place. They supported the defence’s claims of the impossibility of the abuse taking place. Witnesses noted the then Archbishop Pell would have been accompanied at all times during the crowded events and would not have had the opportunity to commit the offences.

Other types of evidence often relied on by the prosecution in child sexual abuse trials did not feature in the Pell trial. The prosecution wasn’t able to present the complainant’s earlier reports of abuse. It seems he told no one prior to the police report.

The absence of earlier reports would not necessarily help the defence. Courts now recognise there are many reasons why victims of child sexual assault find it hard to talk. They feel confused and powerless, particularly where the offender is in a position of authority.




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Many child sexual assault prosecutions rely on evidence of other alleged victims to demonstrate the defendant’s propensity or tendency for child sexual abuse. Such evidence was potentially available in the Pell trial – other allegations had been made from his time in Ballarat in the 1970s.

However, this evidence was not admitted at trial. The two sets of allegations were kept entirely separate (and the trials split), perhaps to avoid the risk of jury prejudice. Pell’s Melbourne convictions (in the cathedral trial) were suppressed while the Ballarat charges (swimmers trial) were pending.

It was only when the prosecution dropped the Ballarat charges that the convictions on the Melbourne charges were made public.

What would the defence appeal?

Because only limited evidence was relied on at trial, relatively few legal issues were raised. This means the defence may find it difficult to identify any legal error as a ground for appeal. Richter has indicated the defence will claim there were errors regarding the constitution of the jury and the defence not being permitted to use a graphic.

If errors are found, the Court of Appeal would still dismiss the appeal if the errors seem too slight to have affected the outcome.

The other defence argument on appeal could be that the conviction was unreasonable. The jury simply got the facts wrong. Here the defence may face obstacles. The Court of Appeal is unlikely to entertain claims the jury was prejudiced and blamed Pell for the Church’s inadequate response to other paedophile priests.

Appeal courts generally trust a properly directed jury will comply with its duties. Appeal courts are also generally wary of overriding jury verdicts, particularly where they rest upon witness credibility, as in this case. Inconsistencies and gaps in a complainant’s account may be attributed to the delay rather than fabrication.

However, the Court of Appeal may feel well placed to assess the defence argument of impossibility. And in this case, unusually, the court may be able to assess the complainant’s demeanour, since the witness testified over video link.

This may be one of those exceptional cases where the court is prepared to say the jury got it wrong. But the court may also hesitate to override the jury – the community’s representatives – in a case that has opened such a rift in Australian society.




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The Conversation


David Hamer, Professor of Evidence Law, University of Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Australians lost more than $10 million to scammers last year. Follow these easy tips to avoid being conned.



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Scammers impersonating the Australian Taxation Office have fleeced Australians of more than $830,000.
Shutterstock

Damien Manuel, Deakin University

Many of us start a typical day by checking our phones to read emails, social media posts and the weather. Our phones are trusted devices we use constantly throughout the day to communicate. But the trust we place in our phones, and the way we interact with the world, also makes it easy for scammers to target us.

Our evolutionary past also makes us susceptible to scams. Humans are curious social animals, which means we are more trusting than we should be. That’s especially the case when we’re dealing with people over the phone, email or via SMS, where we don’t have the normal body language cues we would subconsciously process when making decisions.

We are also susceptible to fear and other psychological tools scammers use to create a sense of urgency that tricks us into making irrational decisions and taking action. Simply being aware that scams are out there is not enough to protect us from them. We also need to change our behaviour.

Scam using branding and authority to make you click to see the confidential information.
Damien Manuel



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Who are these scammers and what do they want?

Scammers come in all shapes and sizes. Some are individuals, others are gangs. The more sophisticated scammers are criminal syndicates and foreign governments looking for a way to subvert international sanctions and obtain money through cyber crime.

The motivations of scammers ranges greatly, but can include:

  • stealing intellectual property
  • tricking you to install malicious software (to steal your data or hold you to ransom)
  • stealing your identity so they can pretend to be you and conduct fraud
  • tricking you to part with your hard earned cash
  • gaining control of your device to steal information at a later date or using your device to attack other people you know.

What techniques are they using?

Scammers are experts at social engineering and use a number of tricks to build rapport, credibility and trust with their targets.

Modifying the caller ID is a simple way to build credibility by making a call or SMS appear to come from an authority like the Australian Tax Office. The rise of cheap Voice over Internet Protocol (VoIP) providers and other online tools has made it even easier for anyone to exploit the phone systems and “spoof” other numbers.

An SMS scam that uses urgency and fear of fines to get people to click a link.
Damien Manuel

In the VoIP phone system, the person initiating the call defines the caller ID seen by the receiver. This is the same for traditional phone systems, however the lower price of VoIP and ease at which the caller ID can be modified without any technical knowledge (via a simple web page) makes it faster and cheaper for scammers to cycle through a number of fake caller IDs in a single day. It also allows them to move to a new source number or VoIP provider very quickly, making it harder for telcos in Australia to block.

There are legitimate business reasons for allowing the caller ID to be modified, such as when companies operating call centres want all outbound phone calls from their staff to appear to originate from a single “help desk” phone number.




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Email spoofing is also common and easy to do. This is where an attacker forges the email header, making the email look like it originated from a friend, authority or service provider, such as a bank. A key way to identify a spoofed email is to check the email address itself (the reply field) rather than just relying on the display name in the “from” field.

Most email clients (such as Gmail or Outlook) on desktops or laptops are capable of displaying email headers. Unfortunately email clients on most smartphones and tablets make it difficult to see the real source and often only show the forged “display name” information.

Phone and email are the two main scam delivery methods. Losses from attempts to gain your personal information rose by more than 61% between 2017 and 2018. This trend shows no sign of slowing down. Last year, Australians lost more than $10 million to scammers.

An example of a scam email.
Damien Manuel

Signs of a scam

Ten common warning signs you are dealing with a scammer include the following:

  • being asked for password, PINs or other sensitive information
  • being told you are owed a refund
  • being told you have unpaid bills, unpaid fines from the police or a government department
  • being notified there is a problem with your email or bank account
  • being asked for urgent help
  • being congratulated on winning a competition (you didn’t enter)
  • being asked to click on a link or open a document
  • being sent an unexpected invoice to open
  • receiving a critical alert message with a link to click
  • receiving a tracking number and link for a delivery (you didn’t order).
A scam telling you your mail box full is designed to make you click on a link.
Damien Manuel



Read more:
More than just money: getting caught in a romance scam could cost you your life


Simple tips to avoid being conned

Firstly, don’t click on any links, don’t respond to offers to opt-out or unsubscribe, don’t call return calls from numbers you don’t recognise and, most importantly, don’t give out personal information – even if you think it isn’t important.

Remember, some scams are multi-step scams. The best thing you can do is to report the scam and tell your friends and family to be aware of the scam so they can modify their behaviours.

Scams can be reported to various government agencies, such as Scam Watch, the Australian Cybercrime Online Reporting Network (ACORN) and, in some cases, the service provider – for example, the ATO, Telstra, AusPost and the banks.The Conversation

An example of a multi-step scam that validates your email is real and then harvests the credentials you enter.
Damien Manuel

Damien Manuel, Director, Centre for Cyber Security Research & Innovation (CSRI), Deakin University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The proposed National Integrity Commission is a watered-down version of a federal ICAC


Yee-Fui Ng, Monash University

The federal government has announced it will establish a Commonwealth Integrity Commission. This new commission will be the peak body to detect and investigate corrupt and criminal behaviour by Commonwealth employees.

This announcement followed mounting pressure from Labor, the Greens and independent MPs, who argued that a national integrity commission was vital to rebuild trust in Australian democracy.




Read more:
Government agrees to national anti-corruption body – with strict limits


On November 26, independent MP Cathy McGowan introduced a private member’s bill for the introduction of a national integrity commission, further increasing the pressure on the government.

All Australian states have anti-corruption commissions, and the federal government is lagging behind in this area.

Why do we need this commission?

The case for a national integrity commission is strong.

Australia has fallen steadily in Transparency International’s global corruption index, from eighth place in 2012 to 13th this year.

More alarming is the fact that one in 20 Australian public servants said in a survey last year that they had seen a colleague acting in a corrupt manner. This figure has doubled in the past three years.

Moreover, a Griffith University survey has found strong public support for a national integrity commission, with two-thirds (67%) of Australians in favour of one.

What will the commission look like?

The commission will be an independent statutory agency led by a commissioner and two deputy commissioners. It will have two divisions: a public sector division and a law enforcement integrity division.

The Australian Commission for Law Enforcement Integrity will be reconstituted as the law enforcement integrity division with an expanded jurisdiction. But its jurisdiction will be limited to certain departments and agencies dealing with law enforcement and those that have coercive powers, such as the Australian Securities and Investments Commission.

The public sector integrity division has a broader coverage. It includes public service departments and agencies, parliamentary departments, statutory agencies, Commonwealth companies and corporations, Commonwealth service providers and any subcontractors they engage, as well as parliamentarians and their staff.

Is the proposed model adequate?

The proposed model is a watered-down version of an anti-corruption commission, with limited powers.

The Commonwealth Integrity Commission will have the power to conduct public hearings only through its law enforcement division.

Conversely, the public sector integrity division with the broader remit will not have the power to make public findings of corruption. Instead, it will be tasked with investigating and referring potential criminal conduct to the Commonwealth Director of Public Prosecutions.

This is a far more limited jurisdiction compared to its equivalent state counterparts, such as the New South Wales Independent Commission Against Corruption (ICAC), which has the ability to conduct public hearings and make findings of corruption in the public sector.

Although it is envisaged that the Commonwealth Integrity Commission will play a role in preventing corruption, this model lacks a dedicated corruption prevention division. This is a pro-integrity function that monitors major corruption risks across all sectors.




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Australians think our politicians are corrupt, but where is the evidence?


There are also other activities that do not amount to corruption, but nevertheless show an undue influence on government. Ideally, a federal anti-corruption commission should sit alongside a broader package of reforms that impose stronger rules on lobbying and political donations, as well as a code of conduct for MPs, policed by an independent commissioner.

This would form an interlocking political integrity system that would keep politicians honest.

The government is taking submissions on the proposed model for the Commonwealth Integrity Commission.

It is commendable that the government is finally taking action on anti-corruption measures. However, it is important to get the model right. The proposed model is an improvement on the status quo of patchwork regulation, but does not go far enough to properly investigate corruption in federal government.The Conversation

Yee-Fui Ng, Senior Lecturer, Faculty of Law, Monash University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Government agrees to national anti-corruption body – with strict limits


Michelle Grattan, University of Canberra

The government has given in to pressure to set up a new Commonwealth
Integrity Commission
but its operation would be strictly
circumscribed, without the ability to hold public hearings into
allegations of corruption against politicians.

While the new organisation would be the lead body in Australia’s
multi-agency anti-corruption framework, Scott Morrison stressed the
government had learned the lessons of “failed experiments” at state
level.

“I have no interest in establishing kangaroo courts that, frankly,
have been used, sadly, too often for the pursuit of political,
commercial or bureaucratic agendas in the public space”, he told a
joint news conference with Attorney-General Christian Porter.

The announcement comes after crossbench pressure in the final sitting
of parliament for a new federal anti-corruption body, which had
earlier been promised by the opposition. Morrison said the government
had been working on the issue since January.




Read more:
View from The Hill: Day One of minority government sees battle over national integrity commission


Opposition leader Bill Shorten slammed the proposed body as “not a
fair dinkum anti-corruption commission”. It would be limited in scope
and power and have no transparency.

Also – given it would not be able to investigate matters
retrospectively – “Mr Morrison should explain to the Australian people
why he wants to set up a national anti-corruption commission which
curiously exempts himself and the current government from any
scrutiny”.

Morrison and Porter said in a statement that the CIC, an independent
statutory agency, would be headed by a commissioner and two deputy
commissioners, and have public sector and law enforcement integrity
divisions.

“The public sector integrity division will cover departments, agencies
and their staff, parliamentarians, and their staff, staff of federal
judicial officers, and subject to consultation judicial officers
themselves, as well as contractors.”

The Australian Commission for Law Enforcement Integrity would be
reconstituted as the law enforcement integrity division. It would have
an expanded jurisdiction to also include the Australian Competition
and Consumer Commission, the Australian Prudential Regulation
Authority, the Australian Securities and Investment, the Australian
Taxation Office, and the whole of the Agriculture Department.

Both divisions would investigate allegations of criminal corruption.
The criminal law would be amended to add new corruption offences.

The CIC would have the power to conduct public hearings only through
its law enforcement division.

The public sector integrity division would not be able to make public
findings but would investigate potential criminal conduct and refer
matters to the Commonwealth Director of Public Prosecutions.

The government outline of its proposed operation says “it will only
investigate criminal offences, and will not make findings of
corruption at large.

“It will not make findings of corruption (or other criminal
offending). Findings of corruption will be a matter for the courts to
determine, according to the relevant criminal offence. This addresses
one of the key flaws in various state anti-corruption bodies, being
that findings of corruption can be made at large without having to
follow fundamental justice processes.”

The CIC’s investigatory role is to “complement” the work of the
Australian federal Police. “The AFP will retain its role in
investigating criminal corruption outside of the public sector, and
could cooperate with or take over investigations on referral by the
CIC where appropriate”.

The public sector division “will focus on the investigation of serious
or systemic corrupt conduct, rather than looking into issues of
misconduct or non-compliance under various codes of conduct”.

Independent Andrew Wilkie said the proposal was “fundamentally flawed
and entirely unacceptable.”

“For example the public sector integrity division, which will
investigate parliamentarians and their staff, can only investigate a
specific set of criminal offences and can’t make findings of
corruption, which is just bizarre.

“Moreover an MP can only be referred by a particular agency and
there’s no way for the public to refer someone – and there’ll be no
public hearings at all meaning the Commission will operate behind
closed doors”.

Crossbencher Kerryn Phelps tweeted “I can’t speak for the entire
crossbench but I certainly won’t be supporting any proposal that fails
to result in adequate transparency and proper investigative powers”.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Groping, grinding, grabbing: new research on nightclubs finds men do it often but know it’s wrong



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Young Australians use nightclubs as a place to relax and perhaps meet a new sexual partner. Many regard some phyiscal contact during the mating ritual as off limits – but still put up with it.

Alfred Allan, Edith Cowan University; Aimee-Rose Wrightson-Hester, Edith Cowan University, and Maria Allan, Edith Cowan University

We have conducted what we believe to be Australia’s first quantitative research on young people’s behaviour in nightclubs and the findings present a disturbing picture.

The research suggests that behaviour is taking place at these clubs that would be criminal if non-consensual, and totally unacceptable at the very least.

However, the behaviour is somehow tolerated – in some cases almost encouraged. Many young people think they are too conservative, and that the behaviours they witness must be normal and acceptable in a nightclub setting – so they just put up with it.

Men engage in this conduct – such as groping, grabbing, and pinching a person on the buttocks – far more than women. Our research was confined to behaviour between heterosexual men and women. The respondents came from across Australia.

On the relatively rare occasions when women initiate such conduct, respondents of both genders regard this as somewhat more acceptable than when it’s men engaging in the conduct.

A values and accountability-free zone?

On any given weekend, young Australians flock to nightclubs and bars to have a good time and, in many cases, find a sexual partner. For years, nightclubs have been hot spots for sexual behaviour that would be deemed out of order in any other setting.

We hear of women who avoid nightlife settings because they dislike their “grab, grope and grind” culture. We also know these behaviours can potentially cause some people to feel degraded, threatened or distressed .

In our study, we explored the norms of sexual behaviour in nightclubs and bars as experienced by 381 young Australians.

They comprised 342 women and 39 men, all of whom identified as heterosexual. They were aged 18 to 30 and had been to nightclubs in the past six months. We recruited them using social media, given the high level of adoption of these platforms by nightclub-goers. We were able to find only 39 male respondents because it’s very hard to get men to open up on this subject. Statistically, this is less than ideal.

We posed the various scenarios listed below, then reversed the role of male and female for each scenario. The third scenario – grinding – is clearly non-consensual, and so would amount to criminal assault. The other scenarios might well amount to criminal assault if non-consensual.

https://datawrapper.dwcdn.net/iYczl/1/

Both genders are more accepting of these behaviours if the perpetrator is a woman.

This finding is difficult to explain. The explanation is likely to be complex, but several factors probably play a role.

It could be that the rise of feminism and the associated sexual liberation of women might have influenced participants from both genders to be more accepting of these behaviours by women.

Men’s behaviour more likely to cause harm

Or could it be that participants believed this type of behaviour by men could cause more harm to recipients than women would cause. This belief is also echoed in the media and society, where the voices of male survivors of sexual assault by women are dismissed or belittled as the harm caused to them is often perceived to be less than that of a female victim. Women are sexually assaulted by men in far greater numbers than the number of men sexually assaulted by women.

In follow-up questions we posed after the study, several men indicated that the more attractive the woman engaging in the unacceptable behaviour was – attractive as perceived by the respondent making the judgement – the more acceptable the behaviour would be. No woman said anything similar of such behaviour by men.

Other research has previously found that men are welcoming of most sexual behaviour in nightlife settings. In relation to the rare instances of women groping men at nightclubs, men have said women cannot help themselves around a young attractive man and that they, the men, do not see the behaviour as a threat – more as a [self-esteem boost].

People think they must be more prudish than their peers

Participants in our study reported they often observe these four behaviours in nightlife settings. Why do they suppress their personal values in this setting and not in others?

Many young people wrongly think that most other people find the behaviours acceptable. Research shows it’s a common phenomenon for people to wrongly think they are more conservative than their peers. They therefore subjugate their personal values in nightlife settings because they think most other people find the behaviour acceptable.

Another reason is patrons find it difficult to identify whether the behaviour is consensual or not. The continuum of consensual sexual behaviour in nightlife settings extends much further than in most other public settings, such as workplaces or the street – that is, an act that would clearly be assault on the street might conceivably be mutually consented to by two people in a nightclub.

Some people go to nightlife settings to find sexual partners, and flirting and hook-up behaviours often occur. There can also be significant pressure on people, especially men, to find a sexual partner, which can lead to riskier and more aggressive sexual advances.

So what’s the solution?

Nightlife settings serve an important social function as a place where young people relax, socialise, develop their social identities and find sexual partners. Society should allow them that opportunity, but at the same time the nightclub should not necessarily be a place where personal values and integrity are left at the door.

One option is to educate young people about criminal behaviour – if they are willing to listen.
Shutterstock

The lock-out laws in some states are an overreaction by authorities to engineer change in these environments. But how can young people bring the right balance to what happens in nightlife settings?

One possible way forward is to use what we academics call “normative interventions”. Such interventions involve first letting young people know what the majority of them actually think, and that is that “grabbing, groping and grinding” in nightlife settings is wrong. Just because it seems like everyone is doing it, doesn’t make it OK.

The next step is to encourage patrons to speak up when such behaviours occur, whether they are the victim or a bystander. Research in other settings shows it’s possible to develop programs that encourage people who observe such behaviour to intervene, such as confronting the perpetrator or reporting the incident to authorities. In further research currently underway, we are looking more closely at the role of consent in nightclub conduct.The Conversation

Alfred Allan, Professor, Edith Cowan University; Aimee-Rose Wrightson-Hester, PhD Candidate, Edith Cowan University, and Maria Allan, Lecturer in Psychology, Edith Cowan University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

How the Australian government is failing on countering violent extremism



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Australia has some of the toughest anti-terror laws in the world. But the government isn’t doing enough to prevent extremism at the community level.
David Crosling/AAP

Keiran Hardy, Griffith University

Countering violent extremism (CVE) programs are recognised globally as a critical part of successful counter-terrorism strategies. In addition to anti-terrorism laws and surveillance powers, governments need CVE programs to address the underlying causes of terrorism.

Australia’s counter-terrorism strategy remains focused on prosecuting individuals for offences like being a member of a terrorist organisation or conspiring to plan a terrorist act. Prosecution is a necessary response to terrorism, but it remains a short-term solution.

When it comes to investing in longer-term, community-based approaches to preventing terrorism, my research has found that the federal government is failing. An analysis of federal budget documents suggests that dedicated funding for CVE programs has dried up and grant money is no longer being allocated.

And at the state level, the majority of funding is still being funnelled into policing and prisons, rather than longer-term community solutions.

What are CVE programs?

“Countering violent extremism” is a broad term that refers to strategies for addressing terrorist ideology and radicalisation.

These programs are generally designed to prevent homegrown terrorism and include youth mentoring projects, interfaith sporting activities, police-led intervention programs and efforts to “deradicalise” hardened terrorist prisoners.




Read more:
Yes, let’s have a frank and open discussion about the causes of extremism and terrorism


CVE programs have proliferated around the world in recent years. My current research compares Australia’s approach with those in Denmark, Germany, Sweden and other countries in Western Europe. In the Muslim world, countries from Saudi Arabia to Malaysia have also developed similar strategies.

Recognising the importance of community programs

Formally, the federal government recognises community-based approaches to CVE as a crucial component of its counter-terrorism strategy.

The National Counter-Terrorism Plan establishes that the federal government will:

provide oversight and coordination of nationally significant CVE projects to prevent, divert or rehabilitate individuals from violent extremism.

This includes “practical efforts” at the Commonwealth level to “build the resilience of communities to violent extremism”.

Dedicated CVE funding was first included under the attorney-general’s portfolio in the 2010 federal budget. At the time, the Rudd government allocated A$9.7 million to support a “Building Community Resilience” grants program over the following four years.




Read more:
Police can play a greater role in community-based efforts to tackle radicalisation


The Liberals initially dropped Labor’s CVE funding after taking power in 2013, but later reinstated it in the mid-year outlook. This followed backlash over the failure of the Abbott government to engage appropriately with Muslim communities.

The 2017/18 federal budget allocated A$9.3 million to CVE programs for that financial year, with that amount dropping to A$6.1 million over the forward estimates.

Funding quietly disappears

Since the creation of the new Home Affairs Department last year, it appears the federal government has again backtracked and decided to no longer fund these community-based programs to CVE.

The 2018/19 federal budget allocated A$158 million for what used to be the attorney-general’s National Security and Criminal Justice program. However, the line item dedicated to CVE, which previously funded grants to community and grassroots organisations, was removed.

It is possible that some of this A$158 million is still being allocated to community-based initiatives, but there is no indication this is the case.

The CVE section on the Home Affairs Department’s website links only to Living Safe Together, a community-based grants program introduced by Abbott’s government. The program, however, no longer appears to be active. The grants were all awarded in 2015 and the longest was for an 18-month project. The latest news on the website dates from November 2016.

In a Senate Estimates hearing last year, a representative from the attorney-general’s CVE centre confirmed that the A$1.9 million in grants awarded through the program were designed as one-off payments.

The Department for Social Services, meanwhile, has allocated A$36.6 million to a community resilience fund, but these projects are not designed to address the risks of terrorism.

So, what does this mean in terms of Australia’s commitment to community-based counter-terrorism programs? With dedicated funding now apparently gone, it remains unclear.

State governments trying to fill the void

Fortunately, the states are taking on a more significant role in CVE. However, their investment in community-based approaches remains small compared to funding for counter-terrorism policing and prison de-radicalisation initiatives.

Recently, the NSW government announced A$47 million to increase the capacity of the Goulburn Supermax prison and A$89 million to fund a program to monitor high-risk terrorism-related offenders.

At the same time, just A$12 million in funding was devoted to community-based programs.

Victoria has established a community resilience unit within the Department of Premier and Cabinet and allocated A$14.1 million over two years to CVE programs.




Read more:
Missing the mark: we don’t need more anti-terror summits or pressure on Muslim community leaders


Yet, the state is allocating A$20.9 million to implement a rash of harsh new anti-terror laws, including allowing police to detain terror suspects for up to four days without a warrant. It’s also investing A$25 million to provide Victorian police with long-range firearms to better respond to terrorist attacks.

Queensland’s latest budget included A$53.8 million over four years to enhance counter-terrorism policing, with no dedicated CVE funding.

The state is investing A$46.7 million to build a new counter-terrorism and community safety centre, which will include firearms ranges and a “life-like scenario village” for police to practise responding to terrorist incidents.

What should the federal government do?

The federal government needs to clarify whether it supports community-based approaches to CVE, and if so, whether it will continue to fund them. One-off payments to grassroots organisations are not adequate to address the underlying causes of terrorism.

Community-based CVE programs are not a silver bullet, nor are they a replacement for law enforcement and intelligence gathering. But even a small amount of money for CVE programs in the next federal budget would signal a commitment to this strategy and allow for new pilot initiatives to be developed. These programs could then be evaluated by researchers to build an evidence-based understanding of their impact and effectiveness, which is currently lacking.

Australia has led the world in creating some of the most rights-infringing legal responses to terrorism. These include ASIO’s questioning and detention warrants, preventative detention orders and powers to strip the citizenship of returned foreign fighters.

It should aim instead to be a world leader in developing innovative, community-based approaches to CVE.The Conversation

Keiran Hardy, Postdoctoral Research Fellow, Griffith Criminology Institute, Griffith University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Explainer: why the UN has found Myanmar’s military committed genocide against the Rohingya



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Medicins san Frontieres estimates that so far, over 13,000 Rohingya Muslims have died in the conflict.
Shutterstock

Anthony Ware, Deakin University

The UN Human Rights Council released a new report last Monday, which calls last year’s violence against the Rohingya “genocide”.

Released almost exactly a year after the start of devastating violence that drove 671,500 Rohingya Muslims into Bangladesh within a matter of months, the report found conclusive evidence that Myanmar’s armed forces committed war crimes and crimes against humanity. Using the strongest language to date, the report calls for the Myanmar commander-in-chief, Min Aung Hlaing, and five generals to be prosecuted.

What was the UN investigating?

The UN Human Rights Council formed a Rohingya investigating commission in March 2017, five months before the start of the violence that led to the mass flight of Rohingya refugees. The initial reason for the commission was a five-month military “area clearance operations” in Rohingya communities from October 2016 to February 2017, which resulted in widespread allegations of human rights abuses and war crimes.

The commission was set up to investigate alleged human rights violations by military, “with a view to ensuring full accountability for perpetrators and justice for victims.” The August 2017 violence occurred after the commission had already begun, but obviously gave it more to investigate.

The “area clearance operations” were triggered by attacks against security forces on October 9, 2016, by a new militant group called the Arakan Rohingya Salvation Army (ARSA). What really spurred the military into action was that the same day as the attacks, the organisation uploaded a series of 11 videos calling for international funding and fighters to join their jihad to liberate northern Rakhine State for the Rohingya – links were quickly found between the leader and the Taliban.

Apparently fearing a situation similar to the ISIS-linked Marawi crisis in the Philippines, the Myanmar army launched massive operations. But this military action failed to root out ARSA, and they responded with a second, much larger attack on August 25, 2017.

The Myanmar government quickly labelled the coordinated attacks by ARSA on over 30 security posts on a single night as “terrorism”. In response, the military quickly launched even more brutal counter-terrorist operations.

Obviously, any government must respond to violence perpetrated against its security forces. But the UN commission has been investigating alleged human rights abuses by the Myanmar army against the Rohingya people as a whole, as they tried to contain the armed threat.

What is the state of the Rohingya crisis?

The onset of brutal military action in their communities led to mass panic by Rohingya communities. Over half the Rohingya in Myanmar were so terrified they abandoned everything and fled to Bangladesh. Médecins Sans Frontières (Doctors Without Borders) quickly estimated that at least 6,700 Rohingya died in the military violence in the first month alone. Total Rohingya deaths were perhaps over 13,000 people.

By March 2018, the UNHCR counted 671,500 Rohingya who had fled Myanmar since August 25, 2017. Counting those who had fled earlier violence, the UNHCR was looking after 836,210 Rohingya refugees in camps in Bangladesh.

Given some remain outside the camps, the Bangladeshi authorities claim 1,092,136 Rohingya refugees are now sheltering in their country. Only about 500,000-600,000 Rohingya Muslims now remain in Myanmar, and their situation is very vulnerable.

With allegations of Rohingya links to terrorism, some elements are trying to isolate these Rohingya villages and drive them out. On the other hand, there are many others locals rebuilding relations with local Rohingya.

What did the report find?

The Report of the Independent International Fact-Finding Mission on Myanmar released this week found conclusive evidence that the army and security forces had indeed engaged in mass killings and gang rapes of Rohingya, with “genocidal intent”. It therefore recommended that the UN Security Council should refer the Myanmar commander-in-chief and five generals to the International Criminal Court in The Hague, or an ad hoc international criminal tribunal. The report also suggested that ARSA might be guilty of war crimes too, and should be held to account.

The report said that Nobel Peace Prize-laureate Aung San Suu Kyi and her government “contributed” to the atrocities through “acts and omissions”. This is a serious critique, and the international community must continue to demand she and her government change policy direction on the Rohingya.

The report authors strongly criticised Suu Kyi in particular, for not using her moral or political authority to stem the hate speech or apparently attempt to limit the military response. However, the passive role described in this report does not leave her open to international prosecution.

How can the crisis be brought to an end?

With serious mass atrocity crimes now documented, it is now urgent that the power of the army be reined in. The Myanmar army must be brought under civilian, parliamentary oversight, and the key perpetrators be at very least removed from position. The military have clearly demonstrated that they need formal oversight, and that their current senior leadership are unfit for command.

Myanmar has long demonstrated its ability to be belligerent to the international community, and that it is prepared to isolate itself in the face of international criticism. If this occurs now, 1.1 million Rohingya refugees in Bangladesh and up to 600,000 Rohingya in Myanmar remain in peril.

The perpetrators of mass crimes must be removed. But we must be careful that dogged pursuit of individuals for prosecution does not so undermine any hope of cooperation by the military and government, and thus further jeopardise the future and wellbeing of the Rohingya themselves.




Read more:
‘They shot my two daughters in front of me’: Rohingya tell heartbreaking stories of loss and forced migration


The repatriation of Rohingya to Myanmar is urgent, before all chance of them returning to their own land is removed. But repatriation plans to date don’t sufficiently guarantee their security and human rights guarantees. The international community needs to push for this, and engage more strongly than ever with the Myanmar authorities in achieving this outcome.

Likewise, the international community must commit resources now to ensure the security and future of the 600,000 or so Rohingya remaining in Myanmar. Much work must be done on strengthening social cohesion, and facilitating the sort of social change that would prepare the local population for accepting all the refugees back too. Now is not the time for broad sanctions and isolation, but engagement for the sake of the Rohingya.The Conversation

Anthony Ware, Senior Lecturer in International & Community Development, Deakin University

This article is republished from The Conversation under a Creative Commons license. Read the original article.