Despite 432 Indigenous deaths in custody since 1991, no one has ever been convicted. Racist silence and complicity are to blame



JAMES GOURLEY/AAP

Alison Whittaker, University of Technology Sydney

You probably know the details of the death of George Floyd. He was a doting father and musician. He was killed when a police officer, Derek Chauvin, knelt on his neck for nearly nine minutes while he cried out “I can’t breathe!”

Chauvin has been charged with third-degree murder and there is speculation other officers involved will be charged soon.

Do you know about David Dungay Jr? He was a Dunghutti man, an uncle. He had a talent for poetry that made his family endlessly proud. He was held down by six corrections officers in a prone position until he died and twice injected with sedatives because he ate rice crackers in his cell.

Dungay’s last words were also “I can’t breathe”.

An officer replied “If you can talk, you can breathe”.




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‘I can’t breathe!’ Australia must look in the mirror to see our own deaths in custody


At the end of a long inquest that stretched to almost four years, the coroner declined to refer the officers involved in Dungay’s death to prosecutors (who might consider charges) or to disciplinary bodies.

Paul Silva, Dungay’s nephew and among the his most powerful advocates for justice, said as he was leaving court,

What am I meant to do now? Go home, look at the ground. Tell my Uncle? — Sorry, Unc, there’s no justice here!‘

This week, he told the Guardian:

When I heard [George Floyd] say ‘I can’t breathe’ for the first time I had to stop … My solidarity is with them because I do know the pain they are feeling. And as for the Aboriginal deaths in our backyard … it’s not in the public as much as it should be.

Leetona Dungay has pursued a very public campaign for justice in the death of her son.
Brendan Esposito/AAP

A perception Indigenous deaths in custody are expected

Many people on this continent know more about police and prison violence in the US, another settler colony, than the same violence that happens here. Both are deserving of our attention and action, so what’s behind the curious silence on First Nations deaths in custody in Australia?

Aboriginal and Torres Strait Islander people have raised this concern long before today in the media and social media.

Why do we have to? The reasons are complex, but boil down to a system of complicity and perceived normality in Indigenous deaths at the hands of police and prisons. The settler Australian public simply does not see Indigenous deaths in custody as an act of violence, but as a co-morbidity.

Amanda Porter, an Indigenous scholar of policing and criminal justice, wrote about media coverage of Indigenous deaths in custody in Australia compared with the US.

She noted differences in the way the media covered the police shooting of Michael Brown in Ferguson, Missouri, with the killing of Mulrunji Doomagee on Palm Island:

The choice of language is important: it evokes a certain response in the reader and shapes our understandings of events. In the case of Palm Island, the often-repeated meta-narrative of so-called ‘dysfunctional’ and ‘lawless’ Aboriginal communities served to justify further acts of colonial violence.

A protest against the police shooting of Michael Brown in Missouri in 2014.
Larry W. Smith/EPA

Why the silence?

Since 1991, some 432 Indigenous people (and possibly more) have died in custody.

In my 2018 pilot study on a sample of 134 Indigenous deaths in custody since the Royal Commission into Aboriginal Deaths in Custody, I found coroners considered referring just 11 deaths to prosecutors and only ended up referring five. Of those, only two made it to court and both resulted in quashed indictments or acquittals.

These are monumental figures. They are also stories of deep systemic complicity, both before and after death. And they are full lives, with loved ones who mourn and fight for them.

Aunty Tanya Day, for instance, campaigned for justice for her uncle who died in custody and later died in custody herself.

The scale of devastation is unthinkable – and violent, and racist.

What makes Australian silence about deaths in custody so especially bizarre is that, unlike the US, we have a mandatory legal review of every death in custody or police presence. Each case, regardless of its circumstances, goes before a judge called a coroner.




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Just as public political will is always changing, so is law and legal strategy. Compared to the campaigns for justice for black people killed by police in the US, which have made relative gains, many families here are working in a complex space of honouring their loved ones, proper cultural protocols around death and the dead, and securing CCTV footage to mobilise the public for justice.

Coroners have offered mixed responses, and each state and territory’s coroner approaches the question in a slightly different way.

After the death of Ms Dhu, a Yamatji woman, in police custody in Western Australia in 2014, persistent advocacy from the families and media organisations prompted the coroner to release footage of her treatment before her death. Coroner Ros Fogliani did so

in order to assist with the fair and accurate reporting of my findings on inquest.

However, last year, NSW deputy coroner Derek Lee initially declined to release footage showing the circumstances of Dungay’s death, citing cultural respect, sensitivity for his family and secrecy over prison procedures.

Members of Dungay’s family, who had applied to have it released, responded with exasperation. It was eventually shown on the opening day of the inquest, although the fuller footage requested by the family remains suppressed from public view.

Other ways families are silenced

There are other transparency issues that give a legal structure to silence about Indigenous deaths in custody. Recently, there appears to be a new push in non-publication or suppression orders being sought by state parties in coroners courts.

In Dungay’s inquest, for instance, the media was ordered not to publish the names, addresses or any other identifying features (including photographs) of 21 NSW corrections staff members.

There have been other suppression orders in deaths in custody matters before criminal courts, such as the identity of the officer facing a murder charge in the death of Yamatji woman Joyce Clarke in Western Australia last year.




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Officers in South Australia are also going to some strategic effort to avoid testifying before the inquest into the death of Wayne Fella Morrison, a Wiradjuri, Kookatha and Wirangu man, or even speak with investigators on the grounds of penalty privilege.

So far, they have not been successful in claiming the blanket privilege, despite taking the matter to the SA Supreme Court.

Morrison’s sibling Latoya Rule has written:

investigations surrounding the cause of death in prisons can have a great impact for our grieving families to at least get an account of what happened to our loved ones in the absence of our care. It can also raise the spotlight on the behaviours of correctional and police officers – like those that piled atop of my brother’s body.

Outside of coroners courts, there is the threat of subjudice contempt, when media coverage may pose a prejudicial threat to a potential trial.

This carries a risk for families who speak out about their loved one’s deaths in a way that even implies something happened or someone did something. Subjudice contempt poses liability to them personally when they speak out, but also could jeopardise their push for justice.

This puts First Nations peoples at the mercy of what can be raised before a jury, judge or coroner. With lengthy procedural delays, this can also mean a case is hard to talk about publicly for years.

This is problematic given that timely publicity about deaths in custody is what drives attention. Taleah Reynolds, the sister of Nathan Reynolds, who died in custody in NSW in 2018, said,

We’re coming up to a year since he died and we still don’t know anything more.

I feel like they don’t have any remorse; they hide behind the system. No one’s held accountable, that’s the most frustrating part.

Combined with plaintiff-friendly defamation laws, media ignorance and racist editorial decisions, and a lack of institutional support for Indigenous journalism, this contributes to some of the hedging language we see around police brutality in Australia, like someone “appearing” to do something captured on video.

All of this leaves our public discourse full of blak bodies but curiously empty of people who put them there.

A Melbourne protest seeking justice in the death of a 19-year-old NT man shot by police.
David Crosling/AAP

The power of public campaigning

Prosecution or referral seems to come only from cases where First Nations families have strong public advocacy and community groundswells behind them and strategic litigation resources (not just inquest legal aid).

As the late Wangerriburra and Birri Gubba leader Sam Watson said of the campaign for justice for the death of Mulrunji Doomagee on Palm Island:

Unfortunately, the government had to be dragged to this point screaming and kicking every inch of the way. Every time there’s been a breakdown in the procedure, the family and community on Palm Island are being subjected to more trauma, drama and unnecessary grandstanding by politicians.

Right now, three deaths are either before prosecutors or in their early stages of prosecution. All have been part of growing, public campaigns driven by their families and communities — although many others, like Dungay’s family, have done the same and still been faced with institutional complicity.

Clearly, there is much legal structure that supports this silence, but the basis of the silence itself is colonisation and white supremacy. As Amy McQuire writes:

Their wounds also testify to this violence. But while this footage has been important for mobilising Aboriginal people, non-Indigenous Australia is still complacent and apathetic.

They are not ‘outraged’ because they are not ‘shocked’. There is nothing shocking about racist violence perpetrated by police, because it is normalised.

When we do hear about the Indigenous lives lost in custody, it is undoubtedly because of the persistence, expertise and courage of their families and communities who mourn them. But it is not enough to hear about justice, justice must be done.The Conversation

Alison Whittaker, Research Fellow, University of Technology Sydney

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

There is no specific crime of catfishing. But is it illegal?



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Marilyn McMahon, Deakin University and Paul McGorrery, Deakin University

Twenty-year-old Sydney woman Renae Marsden died by suicide after she was the victim of an elaborate catfishing scam.

A recent coronial investigation into her 2013 death found no offence had been committed by the perpetrator, revealing the difficulties of dealing with this new and emerging phenomenon.

While we wait for law reform in this area, we think police and prosecutors could make better use of our existing laws to deal with these sorts of behaviours.

What is catfishing?

“Catfishing” occurs when a person creates a fake profile on social media in order to deceive someone else and abuse them, take their money or otherwise
manipulate and control them.

While statistics about the prevalence of catfishing are elusive, popular dating sites such as eHarmony and the Australian government’s eSafety Commission offer advice about spotting catfishers.




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Catfishing is also the subject of an MTV reality series, major Hollywood films, and psychological research on why people do it.

Dangerous, damaging but not a specific crime

There is no specific crime of catfishing in Australia. But there are many different behaviours involved in catfishing, which can come under various existing offences.

One of these is financial fraud. In 2018, a Canberra woman pleaded guilty to 10 fraud offences after she created an elaborate and false online profile on a dating website. She befriended at least ten men online, then lied to them about having cancer and other illnesses and asked them to help her pay for treatment. She obtained more than $300,000.

Catfishers create fake online profiles to deceive others.
http://www.shutterstock.com

Another crime associated with catfishing is stalking. In 2019, a Victorian woman was convicted of stalking and sentenced to two years and eight months jail after she created a Facebook page where she pretended to be Australian actor Lincoln Lewis. This case is currently subject to an appeal.

The grey area of psychological and emotional abuse

When catfishing doesn’t involve fraud or threats, but involves psychological and emotional manipulation, it can be more difficult to obtain convictions.

One of the most notorious cases occurred more than a decade ago in the United States. Missouri mother Lori Drew catfished a teenager she believed had been unkind to her daughter.




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Have you caught a catfish? Online dating can be deceptive


With the help of her daughter and young employee, Drew created a fake MySpace profile as a teenage boy and contacted the 13-year-old victim. Online flirting took place until the relationship was abruptly ended. The victim was told that “the world would be a better place without her”. Later that day, she killed herself.

Because the harm suffered by the victim was not physical but psychological, and had been perpetrated online, prosecutors had trouble identifying an appropriate criminal charge.

Eventually, Drew was charged with computer fraud and found guilty. But the conviction was overturned in 2009 when an appeal court concluded the legislation was never meant to capture this type of behaviour.

Renae Marsden’s case

The harm done to Marsden was also psychological and emotional. She was deliberately deceived and psychologically manipulated through the creation of a fake online identity by one of her oldest female friends.

Marsden thought she had met a man online who would become her husband. For almost two years, they exchanged thousands of text and Facebook messages. Marsden ended an engagement to another man so that she could be with the man she met online. They planned their wedding.

When he abruptly ended the relationship, Marsden ended her life.

The coroner described the conduct of Marsden’s catfisher as “appalling” and an “extreme betrayal”, but found that no offence had been committed. She observed:

Where ‘catfishing’ is without threat or intimidation or is not for monetary gain, then the conduct appears to be committed with the intent to coerce and control someone for the purpose of a wish fulfilment or some other gratification. Though such conduct may cause the recipient mental and or physical harm because it is not conduct committed with the necessary intent it falls outside the parameters of a known State criminal offence.

Existing laws like manslaughter could apply

We disagree with the coroner’s conclusion. We think that existing state criminal offences might capture some of this behaviour.

In particular, deliberately deceptive and psychologically manipulative online conduct, resulting in the death of a victim by suicide, could potentially make a perpetrator liable for manslaughter.

This is because a perpetrator who commits the offence of recklessly causing grievous bodily harm (which may include psychological harm), in circumstances where a reasonable person would realise this exposed the victim to an appreciable risk of serious injury, could be liable for the crime of “manslaughter by unlawful and dangerous act”.

Such prosecutions can and should be contemplated as an appropriate response to the serious wrongdoing that has occurred.

Where to from here?

Marsden’s parents are pushing for catfishing to be made illegal.

Teresa and Mark Marsden want catfishing to be made illegal.
Dean Lewis/AAP

The coroner chose not to recommend a specific offence of catfishing, noting:

there are complex matters which were not canvassed at the inquest which need to be taken into account before any coronial recommendation involving the introduction of criminal legislation.

But the report did recommend a closer look at making “coercive control” an offence.

Coercive control involves a wide range of controlling behaviours and could potentially criminalise the sort of psychologically and emotionally abusive conduct Marsden experienced.

It is also on the political agenda. In March, New South Wales Attorney-General Mark Speakman announced he would consult on possible new “coercive control” laws.




Read more:
It’s time ‘coercive control’ was made illegal in Australia


We note, however, that the coercive control discussion is happening in the context of domestic violence. Whether prospective new laws can or should extend to catfishing will require careful consideration and drafting.

While we wait for a new offence, we should also ensure that we make use of the laws we already have to protect people from the devastating damage that can be done by catfishing.The Conversation

Marilyn McMahon, Deputy Dean, School of Law, Deakin University and Paul McGorrery, PhD Candidate in Criminal Law, Deakin University

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

As Minneapolis burns, Trump’s presidency is sinking deeper into crisis. And yet, he may still be re-elected



Sipa USA Minneapolis Star Tribune/TNS/Sip

Timothy J. Lynch, University of Melbourne

Violence has erupted across several US cities after the death of a black man, George Floyd, who was shown on video gasping for breath as a white police officer, Derek Chauvin, knelt on his neck. The unrest poses serious challenges for President Donald Trump and former Vice President Joe Biden as each man readies his campaign for the November 3 election.

If the coronavirus had not already posed a threat to civil discourse in the US, the latest flashpoint in American racial politics makes this presidential campaign potentially one of the most incendiary in history.

COVID-19 and Minneapolis may very well form the nexus within which the 2020 campaign will unfold. Trump’s critics have assailed his handling of both and questioned whether he can effectively lead the country in a moment of crisis.

And yet, he may not be any more vulnerable heading into the election.

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A presidency in crisis?

As the incumbent, Trump certainly faces the most immediate challenges. Not since Franklin Roosevelt in the second world war has a US president presided over the deaths of so many Americans from a single cause.

The Axis powers and COVID-19 are not analogous, but any presidency is judged by its capacity to respond to enemies like these. With pandemic deaths now surpassing 100,000, Trump’s fortunes will be inexorably tied to this staggering (and still rising) figure.

Worse, the Minneapolis protests are showing how an already precarious social fabric has been frayed by the COVID-19 lockdowns.




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Americans have not come together to fight the virus. Rather, they have allowed a public health disaster to deepen divisions along racial, economic, sectional and ideological lines.

Trump has, of course, often sought to gain from such divisions. But the magnitude and severity of the twin crises he is now facing will make this very difficult. By numerous measures, his is a presidency in crisis.

And yet.

Trump, a ferocious campaigner, will try to find ways to use both tragedies to his advantage and, importantly, makes things worse for his challenger.

For starters, Trump did not cause coronavirus. And he will continue to insist that his great geo-strategic adversary, the Chinese Communist Party, did.

And his is not the first presidency to be marked by the conflagration of several US cities.

Before Minneapolis, Detroit (1967), Los Angeles (1992) and Ferguson, Missouri (2014) were all the scenes of angry protests and riots over racial tensions that still haven’t healed.

And in the 19th century, 750,000 Americans were killed in a civil war that was fought over whether the enslavement of African-Americans was constitutional.

Trump may not have healed racial tensions in the US during his presidency. But, like coronavirus, he did not cause them.

How Trump can blame Democrats for Minneapolis

Not unhappily for Trump, Minneapolis is a largely Democratic city in a reliably blue state. He will campaign now on the failure of Democratic state leaders to answer the needs of black voters.

Trump will claim that decades of Democratic policies in Minnesota – including the eight years of the Obama administration – have caused Minneapolis to be one of the most racially unequal cities in the nation.

In 2016, Trump famously asked African-Americans whether Democratic leaders have done anything to improve their lives.

What do you have to lose by trying something new, like Trump?

He will repeat this mantra in the coming months.

It also certainly helps that his support among Republican voters has never wavered, no matter how shocking his behaviour.

He has enjoyed a stable 80% approval rating with GOP voters throughout the coronavirus crisis. This has helped keep his approval rating among all voters steady as the pandemic has worsened, hovering between 40 and 50%.

These are not terrible numbers. Yes, Trump’s leadership has contributed to a series of disasters. But if the polls are correct, he has so far avoided the kinds of catastrophe that could imperil his chances of re-election.




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Why this moment is challenging for Biden

Biden should be able to make a good case to the American people at this moment that he is the more effective leader.

But this has not yet been reflected in polls, most of which continue to give the Democrat only a lukewarm advantage over Trump in the election.

The other problem is that the Democratic party remains discordant. And Biden has not yet shown a capacity to heal it.




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Race has also long been a source of division within Biden’s party. Southern Democrats, for instance, were the key agents of slavery in the 19th century and the segregation that followed it into the 20th.

After the 1960s, Democrats sought to make themselves the natural home of African-American voters as the Republican party courted disaffected white Southern voters. The Democrats largely succeeded on that front – the party routinely gets around 85-90% of black votes in presidential elections.

The challenge for Biden now is how to retain African-American loyalty to his party, while evading responsibility for the socio-economic failures of Democratic policies in cities like Minneapolis.

He is also a white northerner (from Delaware). Between 1964 and 2008, only three Democrats were elected president. All of them were southerners.

To compensate, Biden has had to rely on racial politics to separate himself from his primary challenger – Bernie Sanders struggled to channel black aspirations – and from Republicans. And this has, at times, caused him to court controversy.

In 2012, he warned African-Americans that then-Republican presidential candidate Mitt Romney would put them “all back in chains”. And just over a week ago, he angered black voters by suggesting those who would support Trump in the election “ain’t black”.

Biden is far better than Trump on racial issues and should be able to use the current crises to present himself as a more natural “consoler-in-chief”, but instead, he has appeared somewhat flatfooted and derided for being racially patronising.

The opportunities COVID-19 and the Minneapolis unrest might afford his campaign remain elusive.

The protests over George Floyd’s death swiftly spread across the country.
ETIENNE LAURENT/EPA

There is reason for hope

America enters the final months of the 2020 campaign in a state of despair and disrepair. The choice is between an opportunistic incumbent and a tin-eared challenger.

But the US has faced serious challenges before – and emerged stronger. Neither the civil war in the 19th century or the Spanish flu pandemic in the early 20th halted the extraordinary growth in power that followed both.

Moreover, the US constitution remains intact and federalism has undergone something of a rebirth since the start of the pandemic. And there is a new generation of younger, more diverse, national leaders being forged in the fire of crisis to help lead the recovery.The Conversation

Timothy J. Lynch, Associate Professor in American Politics, University of Melbourne

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

Transmitting COVID-19 to another person could send you to prison for life. Here’s why this is worrisome



James Ross/AAP

Felicity Gerry, Deakin University and Lorana Bartels, Australian National University

Last week, Health Minister Greg Hunt issued a stark warning that the deliberate transmission of COVID-19 could be punishable by a lifetime prison sentence.

Hunt said he sought legal advice from the attorney-general’s department, which said such an action was an offence under the general criminal laws in every state and territory.

The most serious of these offences may carry maximum penalties up to imprisonment for life, if somebody was to take a step which led to the death of a healthcare worker. If it were a deliberate transmission.

He also said it was against the law to

cause someone else to fear that they are having transmitted to them the virus, for example by coughing on them.

Hunt was responding to reports of people abusing healthcare staff and police by coughing and spitting on them.

NSW has also now introduced a A$5,000 on-the-spot fine for spitting or coughing on frontline workers, while intentionally spitting or coughing on police officers could result in six months in jail.

We understand these are extreme times, but governments should not rush to announcements that transmitting COVID-19 could be subject to criminal prosecution, especially with the risk of a life sentence.




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What are the issues with a law like this?

In general, the passage and enforcement of all laws must be tested for “necessity”. This implies two things: the measure corresponds to a pressing social need and is proportionate to the legitimate aim being pursued.

There is also a distinction between public health and public order laws. The current emergency laws provide exceptional powers to require certain behaviours to protect public health, not to combat public disorder, which is dealt with under general criminal laws.

The danger of adding to general criminal laws in a crisis is the potential over-criminalisation of the general public.

There have been some reports of public disorder during the current pandemic, but as yet, there is no evidence of widespread deliberate and intentional transmission of COVID-19.

The application of the law in cases like this is also uncertain and unclear. For example, what do Hunt’s words, “take a step” and “deliberate”, mean in this context? How would it be proved that coughing on someone led to the death of a healthcare worker?




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First, it would be difficult to identify a specific individual as the source of a possible infection, particularly since the virus can remain on surfaces for several days

Then there is the question of intent. As a matter of law, it is not merely proof of deliberate (rather than accidental) conduct that creates criminal liability, but also someone’s state of mind at the time of the action and whether it is in the public interest to prosecute.

This is a much more complex issue in public health cases.

In 2013, a circus acrobat, Godfrey Zaburoni, was jailed for deliberately infecting his girlfriend with HIV through unprotected sex. But his conviction was quashed by the High Court, which stated

a person’s awareness of the risk that his or her conduct may result in harm does not … support the inference that the person intended to produce the harm.

There is a very fine distinction between deliberately infecting someone with a disease – particularly where the chance of infection is low (as it is with HIV) – and taking a risk that could infect someone.

Moreover, assaulting or spitting at public health workers is already a crime under existing laws, and doing so during a health emergency can be taken into account on sentence. So, Hunt’s announcement has no practical effect beyond mere rhetoric.

The threat of prosecuting people for deliberately transmitting the virus may also add to people’s fears during an uncertain time. For instance, people could be worried about the legal implications of coughing near a healthcare worker and delay getting medical help as a result.

In addition, large on-the-spot fines could also disproportionately affect certain segments of society, such as the poor or homeless.

The need to decriminalise transmission of viruses

Advocates in other countries are seeking to decriminalise the transmission, exposure or non-disclosure of viruses like HIV, arguing such laws can be unfairly or unevenly applied.

In the United Kingdom, a hairdresser, Daryll Rowe, was sentenced to life in prison two years ago for intending to infect or attempting to infect 10 men with HIV.

In the trial, the prosecution relied on the number of his sexual partners, his deception about his HIV status, the finding of tampered condoms and the vile text messages he sent after sexual encounters to prove its case that he intentionally infected the other men.

But there was also evidence that he was otherwise trying to control his infectiousness through alternative remedies and, notably, that he had limited contact with sexual partners rather than relationships, meaning there was less regular contact and less chance of transmission.

As a result, he was convicted of intentional infection, even though there was evidence he was otherwise trying to avoid this.




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The criminal law in both the UK and Australia does not provide a defence where others voluntarily assume risk. This could put all promiscuous people at risk of conviction in cases like this, even though such actions themselves are not crimes.

The same theory could apply to COVID-19. Anyone who does not maintain appropriate social distancing could be at risk of conviction under these laws and subject to an overly harsh punishment.

We need a public health, not criminal law, approach

Public health emergencies may bring criminal sanctions for non-compliance of restrictions like social distancing and quarantining – but even here, some have expressed concern about the scope and enforcement of the new laws.

Already, the pandemic is placing significant strain on police, courts and prisons

Governments should allocate adequate resources to protect healthcare workers, rather than promoting the application of extreme laws that will be difficult to prove and waste resources attempting to do so when the current emergency laws are more than sufficient.The Conversation

Felicity Gerry, Professor and Queen’s Counsel, Deakin University and Lorana Bartels, Professor and Program Leader of Criminology, Australian National University

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

What governments can do about the increase in family violence due to coronavirus



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Melissa O’Donnell, University of Western Australia; Aron Shlonsky, Monash University; Ben Mathews, Queensland University of Technology; Fiona Arney, University of South Australia; Fiona Stanley, Telethon Kids Institute; Leah Bromfield, University of South Australia; Rhiannon Pilkington, University of Adelaide, and Rhonda Marriott, Murdoch University

Tackling a health crisis such as COVID-19, with society in lockdown can’t help but place families under strain.

It’s been reported family violence notifications to police nearly tripled in some areas of China’s Hubei province (where SARS-CoV-2, the virus that causes COVID-19 originated) during the lockdown in February.

Some family violence organisations in Australia are already reporting a rise in demand for services.

The federal government recently announced A$1.1 billion for mental health services, domestic violence support and Medicare assistance for people at home, and emergency food relief. This support is welcome but more practical and creative measures are also required to protect vulnerable families.

COVID-19 and vulnerable children

Prior to the pandemic, in 2018-19, about 170,000 children aged up to 17 years (around 30 out of 1,000) received child protection services. These services include investigations, which may or may not lead to substantiated cases of child abuse or neglect, care and protection orders, or out-of-home care placements.

Most of these children remain in their families of origin with social workers from government and community agencies, as well as teaching, medical and other professionals supporting these families and monitoring children’s safety.

But the social structures and services which normally support children and families – such as schools, parenting or mother’s groups, and family services – have been removed or are operating at reduced capacity.




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Reduced service provision will amplify the pre-existing and COVID-19 related challenges that impact children’s safety. These include parental substance misuse, mental health problems and neglect.

Hard-to-detect types of abuse, such as child sexual abuse, are likely to increase. Studies show social isolation increases the risk for vulnerable children, allowing perpetrators greater ability to employ grooming strategies.




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Grooming: what parents should know and what schools should do if they suspect it


Existing family stress will be magnified through widespread job and income loss, food security issues in regional areas and medication shortages. The need for families to spend extended periods of time together in confined spaces will only add to the pressure, testing relationships and potentially exacerbating mental-health issues and aggressive behaviours.

One concern is that as families become more isolated due to the pandemic, children already at risk will be hidden at the same time that they are facing heightened danger from violence, abuse and neglect in their homes.

A recently released Canadian review of the literature on child welfare issues during pandemics found a number of challenges will confront welfare, family and community services. These include:

  • a decrease in in-home family support services, which reduces chances to detect and respond to health and care concerns

  • limits on substance abuse and addiction services

  • reduced visitation and reunification processes with parents, for children in out-of-home care

  • substantial court delays, including with child protection orders to determine if a child will return home or remain in out-of-home care

  • a decreased capacity among the major agencies who report child maltreatment and domestic violence, such as education and health, resulting in decreased detection of serious safety threats

  • a reduction in the capacity of police and child protection services to investigate and respond to serious safety threats.

At June 2019, there were 44,900 children in out-of-home care. Most of these children were in home-based care, with just over half cared for by relatives, such as grandparents, who are at higher risk of more severe effects of COVID-19.

Around 30% of children in out-of-home care also live with a disability or mental health issue. These children require high levels of support, which places extra pressure on carers who may be homeschooling while coping with reduced childcare and respite support.

What needs to be done

Government and community agencies are facing unprecedented and significant challenges. There is a real risk of some services and supports, that are essential to child safety, being overlooked as our attention is focused on COVID-19.




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Governments can employ a number of strategies to minimise the risk of further exacerbating issues in vulnerable families. These include:

  • continued and sustained financial support for families who suffer income and job loss, through timely access to unemployment benefits. This support must be enabled as soon as possible to reduce heightened individual and family stress

  • online consultations for mental health and addiction, so service provision is broader than just tele-health but includes community based support services. This can assist families in self-isolation to reduce symptom escalation and enable triaging of in-person support for those who need it

  • provide urgent support to service providers to develop policy on how to safely sustain service provision in the event of a community “lockdown”. Like health services, social services are essential for maintaining child and community safety.

  • use creative strategies to provide refuges and emergency accommodation for those seeking safety. Empty hotels and Airbnb rooms could be used for women and children at-risk. Regional community strategies will also be required to address this need with restricted travel being imposed

  • restrict alcohol sales, such as in Western Australia, which has imposed limits on how much alcohol a person can buy.

  • create flexible, innovative strategies, such as respite services and child care provisions for in-home support for families and carers who are vulnerable or who have children with high care needs.

  • extend care this year for young people turning 18 so they can remain in out-of-home care placements with foster and relative carers. Currently children in out-of-home care are required to leave their placements when they turn 18.

  • increase the workforce capacity for welfare and community agencies – downturns in other sectors may enable a boost in this workforce. For example people working in youth recreation who have lost their jobs could assist in youth support agencies as they have working with children checks and youth experience. Training will be challenging but not impossible.

  • encourage everyone who can to provide support to neighbours and friends who may be struggling. A phone call, virtual chat or a food delivery can make a huge difference.

This is a challenging time for everyone, but especially so for those already vulnerable. Australia can employ innovative strategies to address the health and safety concerns for our most vulnerable children and families.


The National Sexual Assault, Family & Domestic Violence Counselling Line – 1800 RESPECT (1800 737 732) – is available 24 hours a day, seven days a week for any Australian who has experienced, or is at risk of, family and domestic violence and/or sexual assault.The Conversation

Melissa O’Donnell, Senior Research Fellow, University of Western Australia; Aron Shlonsky, Professor, Social Work, Monash University; Ben Mathews, Professor, School of Law, Queensland University of Technology; Fiona Arney, Chair and Director, Australian Centre for Child Protection, University of South Australia; Fiona Stanley, Perinatal and pediatric epidemiologist; distinguished professorial fellow, Telethon Kids Institute; Leah Bromfield, Associate Professor and Deputy Director, Australian Centre Child Protection, University of South Australia; Rhiannon Pilkington, Postdoctoral research fellow, BetterStart Child Health and Development Research Group, University of Adelaide, and Rhonda Marriott, Professor Aboriginal Health and Wellbeing, Murdoch University

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

Explainer: how will the emergency release of NSW prisoners due to coronavirus work?



AAP/Jono Searle

Thalia Anthony, University of Technology Sydney

The New South Wales government has passed emergency legislation providing the Corrections Commissioner with powers to release some of the state’s 14,034 prisoners.

This legislation was introduced in the wake of the global release of prisoners to cope with the COVID-19 pandemic. Most recently, the United States has begun to release thousands of prisoners across four states.




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Legislation to release prisoners in NSW was drafted amid the growing number of cases of COVID-19 infections in prison populations, including staff. The overcrowding and poor sanitation and health conditions in prisons make them ripe for the rapid spread of disease.

Long Bay jail in Sydney was locked down this week when two prison staff tested positive for COVID-19 and several inmates displayed symptoms. The higher incidence of chronic health conditions among inmates predisposes them to suffer serious and critical outcomes from the virus.

Why is legislation needed?

The NSW government has introduced the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW) to address the escalation of COVID-19 cases in the state.

NSW has the highest per capita rate in Australia, with more than 1,000 cases as of March 25. The emergency legislation provides for the release of prisoners. The provision will apply for a minimum of six months and may apply for up to 12 months under regulations.

This emergency provision is concerned with protecting vulnerable inmates and releasing prisoners who pose a low risk to the community. Attorney-General Mark Speakman said the legislation was designed to protect the health of inmates and frontline prison workers as well as the “good order and security” of prisons.

Freeing up prison space through the early release of prisoners will enable the remaining prisoners to be isolated, to prevent or control an outbreak. It also allows the health needs of remaining inmates to be better addressed.

We have seen what happens without this action in prisons overseas: infection spreads rapidly and foments unrest among prisoners. In Italy, prisoner fears that they faced a death sentence because of COVID-19 resulted in riots in 23 Italian prisons and the deaths of 12 prisoners.

Who can be released under the legislation?

The COVID-19 legislation allows for the release of prisoners who belong to a prescribed “class of inmates”. They may be defined according to their health, vulnerability, age, offence, period before the end of the prison term and any other matter as set down in regulations.

Serious offenders are excluded. This not only rules out those specifically mentioned, including prisoners convicted of murder, serious sex offences and terrorism, but also high-level drug and property offenders.

The Corrections Commissioner will determine an individual’s release where it is “reasonably necessary” due to “the risk to public health or to the good order and security of correctional premises”. Community safety and the prisoner’s access to suitable accommodation outside prison are necessary aspects of the decision-making. Other consideration are whether the offender has previously committed a domestic violence offence and the impact of the release on the victims.

Prisoners will be released on parole and subject to standard parole conditions. They will, for example, have to be of good behaviour and not reoffend, as well as any additional conditions determined by the commissioner, including home detention and electronic monitoring.

Does this cover all prisoners?

There are some concerning omissions from this legislation if it is to achieve its objectives of protecting inmates, prison staff and the community.

First, it is not clear whether it will apply to youth detention centres. This vulnerable group requires special protection in this period when they are denied visits from their parents, family and lawyers, have fears about COVID-19 infection and most likely are unaware of their rights to health care.

The legislation also does not refer to remand prisoners, who constitute over one-third of prisoners in NSW. The legislation explicitly refers to parole, rather than determinations on bail.

Administrators must set down regulations to include this group in the prescribed “class of inmates” for release. Otherwise, those most entitled to liberty – who have not been convicted or sentenced – will be left in prison to suffer through the pandemic. The suspension of new jury trials will mean they spend further time in prisons until well after the COVID-19 crisis.

Critically, the legislation is silent on people who are facing a prison sentence or remand order, but not yet in prisons. For those people, there is no legislation urging the courts to consider the coronavirus pandemic in promoting non-prison sentences or allowing bail applications.




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Over the past week, lawyers have rushed to collect evidence on the effect of the pandemic on prisoners to support their clients’ pleas not to be imprisoned. Supreme Courts in Victoria and the ACT have accepted the relevance of COVID-19 in bail applications. But there is a lack of guidance elsewhere on bail and sentencing, increasing the risk of more people being sent into the prison system.

Schedule 1 of the emergency legislation granted controversial powers to the attorney-general to alter the bail laws by regulation during the crisis. The NSW government has indicated it intends to use these powers to deliver changes on bail to prevent more prisoners entering jail on remand. The timing and scope of these changes have not been detailed, but are certainly critical to preventing the pandemic entering our prisons.

Not only would the entry of new inmates add to the burden on prisons, it could also create a devastating situation where unknown carriers of the coronavirus enter the system.

While there are no laws to limit courts ordering imprisonment during the pandemic, Corrections Commissioner Peter Severin could use his discretion to review the release of prisoners at the point of reception. In other words, the process between the court order and physical entry into a prison cell. Regulations should clarify the use of the commissioner’s power at this point to prevent unnecessary entry of new prisoners.

Does it strike the right balance in community protection?

The immediate release of NSW prisoners will protect prisoners from greater exposure to COVID-19, limit the outbreak of the virus in prisons and minimise the spread between prison and the community.

But there is more to be done. The release of less serious offenders should not be based on the pre-pandemic criteria of the risk of the individual. These criteria often discriminate against Indigenous people, those with mental health issues and socio-economically deprived. Rather, it should be based on the health needs of prisoners and the interests of community safety in managing the health risk.

Given that many prisoners have poor health and are serving short prison terms, the broad use of the commissioner’s discretion could result in thousands of prisoners being released from NSW prisons.

Ultimately, the legislation will only work to minimise the worst effects of COVID-19 in prisons if the commissioner exercises his discretion widely to prevent overcrowding and take the load off already scarce health services in prisons.The Conversation

Thalia Anthony, Professor in Law, University of Technology Sydney

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

‘Click for urgent coronavirus update’: how working from home may be exposing us to cybercrime


Craig Valli, Edith Cowan University

Apart from the obvious health and economic impacts, the coronavirus also presents a major opportunity for cybercriminals.

As staff across sectors and university students shift to working and studying from home, large organisations are at increased risk of being targeted. With defences down, companies should go the extra mile to protect their business networks and employees at such a precarious time.

Reports suggest hackers are already exploiting remote workers, luring them into online scams masquerading as important information related to the pandemic.

On Friday, the Australian Competition and Consumer Commission’s Scamwatch reported that since January 1 it had received 94 reports of coronavirus-related scams, and this figure could rise.

As COVID-19 causes a spike in telework, teleheath and online education, cybercriminals have fewer hurdles to jump in gaining access to networks.

High-speed access theft

The National Broadband Network’s infrastructure has afforded many Australians access to higher-speed internet, compared with DSL connections. Unfortunately this also gives cybercriminals high-speed access to Australian homes, letting them rapidly extract personal and financial details from victims.

The shift to working from home means many people are using home computers, instead of more secure corporate-supplied devices. This provides criminals relatively easy access to corporate documents, trade secrets and financial information.




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Instead of attacking a corporation’s network, which would likely be secured with advanced cybersecurity countermeasures and tracking, they now simply have to locate and attack the employee’s home network. This means less chance of discovery.

Beware cryptolocker attacks

Cryptolocker-based attacks are an advanced cyberattack that can bypass many traditional countermeasures, including antivirus software. This is because they’re designed and built by advanced cybercriminals.

Most infections from a cryptolocker virus happen when people open unknown attachments, sent in malicious emails.

In some cases, the attack can be traced to nation state actors. One example is the infamous WannaCry cyberattack, which deployed malware (software designed to cause harm) that encrypted computers in more than 150 countries. The hackers, supposedly from North Korea, demanded cryptocurrency in exchange for unlocking them.

If an employee working from home accidentally activates cryptolocker malware while browsing the internet or reading an email, this could first take out the home network, then spread to the corporate network, and to other attached home networks.

This can happen if their device is connected to the workplace network via a Virtual Private Network (VPN). This makes the home device an extension of the corporate network, and the virus can bypass any advanced barriers the corporate network may have.




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If devices are attached to a network that has been infected and not completely cleaned, the contaminant can rapidly spread again and again. In fact, a single device that isn’t cleaned properly can cause millions of dollars in damage. This happened during the 2016 Petya and NotPetya malware attack.

Encryption: not a cryptic concept

On the bright side, there are some steps organisations and employees can take to protect their digital assets from opportunistic criminal activity.

Encryption is a key weapon in this fight. This security method protects files and network communications by methodically “scrambling” the contents using an algorithm. The receiving party is given a key to unscramble, or “decrypt”, the information.

With remote work booming, encryption should be enabled for files on hard drives and USB sticks that contain sensitive information.

Enabling encryption on a Windows or Apple device is also simple. And don’t forget to backup your encryption keys when prompted onto a USB drive, and store them in a safe place such as a locked cabinet, or off site.

VPNs help close the loop

A VPN should be used at all times when connected to WiFi, even at home. This tool helps mask your online activity and location, by routing outgoing and incoming data through a secure “virtual tunnel” between your computer and the VPN server.

Existing WiFi access protocols (WEP, WPA, WPA2) are insecure when being used to transmit sensitive data. Without a VPN, cybercriminals can more easily intercept and retrieve data.

VPN is already functional in Windows and Apple devices. Most reputable antivirus internet protection suites incorporate them.

It’s also important that businesses and organisations encourage remote employees to use the best malware and antiviral protections on their home systems, even if this comes at the organisation’s expense.

Backup, backup, backup

People often backup their files on a home computer, personal phone or tablet. There is significant risk in doing this with corporate documents and sensitive digital files.

When working from home, sensitive material can be stored in a location unknown to the organisation. This could be a cloud location (such as iCloud, Google Cloud, or Dropbox), or via backup software the user owns or uses. Files stored in these locations may not protected under Australian laws.




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Businesses choosing to save files on the cloud, on an external hard drive or on a home computer need to identify backup regimes that fit the risk profile of their business. Essentially, if you don’t allow files to be saved on a computer’s hard drive at work, and use the cloud exclusively, the same level of protection should apply when working from home.

Appropriate backups must observed by all remote workers, along with standard cybersecurity measures such as firewall, encryption, VPN and antivirus software. Only then can we rely on some level of protection at a time when cybercriminals are desperate to profit.The Conversation

Craig Valli, Director of ECU Security Research Institute, Edith Cowan University

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

Beware of bushfire scams: how fraudsters take advantage of those in need



Australians were also cheated out of A$400,000 last year in charity scams.
Dean Lewins/AAP

Cassandra Cross, Queensland University of Technology

There’s been an overwhelming outpouring of love and support around the world for those impacted by the bushfires, from social-media donation drives to music concerts to authors auctioning off their books.

Sadly, but unsurprisingly, we’ve also seen a number of scams directed at those who want to help, as well as victims of the fires.

In recent days, the ACCC set up a hotline dedicated to the reporting of scams associated with the bushfire crisis. The agency notes some 86 scams have been reported since the fires started in September – and counting.

While it’s difficult to believe offenders would seek to profit from other people’s generosity and heartache, this is entirely to be expected.

What types of scams are common

Research has found natural disasters are a catalyst for increased fraud schemes globally. This was the case after Hurricane Katrina in 2005, the 2011 Japanese tsunami and the 2010 earthquake in Haiti, just to name a few.




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In Australia, the current bushfire crisis has led to the creation of fake fund-raising websites, fraudulent door-knocking donation campaigns and fake calls from banks offering disaster relief funds.

In addition to the ACCC, several other consumer affairs agencies have issued warnings about these schemes.

The ongoing problem of fraud

In 2018, Australians lost over A$489.7 million to fraud. While a large part of this was through investment and romance fraud schemes ($146.5 million), Australians were also cheated out of A$210,000 in charity frauds. This increased to over A$400,000 in 2019.

The key element to fraud is lying for financial gain. Offenders will use whatever means possible to manipulate and deceive people into giving them money. This can involve obtaining money directly from a person, or by convincing victims to provide personal information to get cash through identity theft.

In charity frauds, offenders sometimes use the legitimate name of an organisation or individual to secure donations from victims, or they might use the pretext of a natural disaster or other negative event to obtain cash.

Harnessing the goodwill of strangers

Fraudsters use natural disasters in a variety of ways. They take advantage of our sense of sympathy and desire to help victims struggling through terrible events unfolding before our eyes. They also convey a sense of urgency aimed at convincing people to immediately part with their cash.

Importantly, offenders also exploit the fact people are highly motivated during times of disaster to donate money they ordinarily would not consider giving.




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Social media enables offenders to readily advertise their fraudulent schemes. With online fraud, it is often difficult for victims to authenticate email accounts, websites, individuals or organisations soliciting money. Offenders often create fake documentation to support their schemes, as well.

Social media can also be used by fraudsters in disinformation campaigns. As these posts are shared across platforms such as Facebook and Twitter, offenders can generate traction for their “charity” pitch before it is identified as fraud. By this stage, it can be too late.

Victims vulnerable in disaster recovery, too

It’s important to note the risk of fraud is not limited to the time of the actual disaster, or the immediate aftermath.

Many of those who have experienced loss or damage in the bushfires, for instance, face a long road to recovery and could be susceptible to scams at any time.

Research indicates negative life events can make a person more vulnerable to fraud. Those affected by the bushfires may find themselves the victims of fraudulent investment opportunities, romantic relationships and other schemes claiming to help them get their lives back on track.

For example, offenders may offer to assist with the negotiation of mortgage repayments with banks, obviously for a fee (large or small).

Protecting ourselves against fraud

There are steps people can take to protect themselves from scams as the bushfire crisis is unfolding – and into the future.

In the short term, it’s important to think about how we donate financially to those in need. There are many appeals that have been set up by registered charities and organisations (such as the Red Cross, the CFA, and the RFS). These are the safest ways to send money. Remember requests through social media channels and other platforms may not be genuine.

Importantly, the internet is not the only way offenders operate. Fraudsters still use the telephone and even face-to-face communication to collect money.




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Only call organisations you have researched to donate money and always ask for identification from those door-knocking for donations. If in doubt, don’t feel pressured to say yes and simply hang up or walk away.

In the longer term, we also need to be aware fraudsters take advantage of people when they are isolated, so it’s important to rally around family members, friends and others who are facing significant losses and feeling alone.

We need to better understand how fraud works and acknowledge anyone can be targeted. We also need to be able to talk about our vulnerabilities more openly in our homes and communities.

Fraud is an ongoing challenge globally. The current Australian bushfire crisis is simply the latest way for fraudsters to target our generosity and cause additional grief.The Conversation

Cassandra Cross, Senior Research Fellow, Faculty of Law, Cybersecurity Cooperative Research Centre, Queensland University of Technology

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

Humans light 85% of bushfires, and we do virtually nothing to stop it


Janet Stanley, University of Melbourne

It’s hard to comprehend why someone would deliberately light a bushfire. Yet this behaviour regularly occurs in Australia and other countries. We would go a long way to preventing bushfires if we better understood this troubling phenomenon.

Experts estimate about 85% of bushfires are caused by humans. A person may accidentally or carelessly start a fire, such as leaving a campfire unattended or using machinery which creates sparks. Or a person could maliciously light a fire.

This criminal behaviour is not widely recognised or understood by the public, fire authorities or researchers. This means opportunities to prevent bushfires are generally being missed and resources devoted to tackling the cause are far from commensurate with the devastating consequences.

The 2013 fire at Wallan, Victoria, was thought to be deliberately lit.
MARK DADSWELL/AAP

Profile of an arsonist

Research has shown about 8% of officially recorded vegetation fires were attributed to malicious lighting, and another 22% as suspicious. However, about 40% of officially recorded vegetation fires did not have an assigned cause. When unassigned bushfires were investigated by fire investigators, the majority were found to be maliciously lit.

But official fires are just the tip of the iceberg: the actual number of bushfires in Australia is thought to be about five times that recorded. Virtually none of these unrecorded fires are investigated.

Young men comprise the largest group of people who maliciously light fires. These youth are usually troubled, likely to have absent fathers and little home supervision. They are likely to have experienced child abuse and neglect and associated with an antisocial peer group. Lighting fires may give a feeling of excitement, defiance and power, or it may be an expression of displaced anger. Some offenders have an intellectual disability.




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Offenders may make no attempt to extinguish the fire, and give little consideration to the consequences. Some may have no feelings of remorse or fear of punishment. Others may never have intended to create such wide devastation.

Older males who light malicious fires also have a history of social and educational disadvantage, poor family functioning in childhood, low self-esteem, and often a pathological interest in fire. However the older the person gets, the less likely they are to light fires.

Convicted Black Saturday arsonist Brendan James Sokaluk arriving at the Supreme Court in Melbourne.
Julian Smith/AAP

So why don’t we talk about arson?

During last week’s east-coast bushfire crisis, a handful of news reports covered people lighting fires. They include a teenager who allegedly lit a Queensland bushfire that razed 14 homes, and a man charged with starting a Sydney fire by letting off fireworks.

Media attention on a fire’s cause is generally scant and the public rarely hears much beyond initial charges being laid. This is in stark contrast to blanket news coverage of the consequences of bushfires.




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A staggeringly low apprehension and conviction rate for offenders – less than 1% – is a further barrier to public awareness of the problem. Conviction rarely leads to a substantial punishment.

Fire brigades in most states offer a limited education course for some children who light fires, usually led by volunteers. But there are few targeted treatment programs for those who light bushfires.

Firefighters near Sydney in November 2019 conducting controlled burning – a common fire mitigation method.
Jeremy Piper/AAP

Rethinking the bushfire problem

Rather than tackling the cause of the problem, the major response to bushfire in Australia is mitigation. This largely involves one blunt approach: hazard reduction burns to reduce bushfire fuel loads. This is an increasingly difficult task as climate change makes weather conditions more unsuitable for controlled burns.

This business-as-usual approach has not halted the upward trajectory of bushfire ignitions.




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A much greater focus on prevention would require a significant rethinking of the bushfire problem. This would include collaboration between government, business, non-government organisations, communities and others.

Victoria’s Gippsland Arson Prevention Program provides a promising model. Through public education, media engagement and other means, it informs communities on how to help prevent arson. The committee includes Victoria Police, government and fire authorities and local power generators.

In one example of an on-the-ground response, local authorities organised the removal of dumped cars, which are commonly seen by bored and troubled youth as an invitation to start a fire.

Arson prevention also includes addressing long-term problems such as youth disadvantage and unemployment, especially in rural-urban fringe areas where most human-lit fires occur.

Shorter-term approaches include providing support and treatment to at-risk youth, and situational crime prevention such as good lighting and cameras in places vulnerable to fire lighting.

We must open up a society-wide discussion of bushfire prevention, which includes listening to local communities about what they value and what can be done about the problem. As climate change worsens – and bushfires along with it – a radical rethink is required.The Conversation

Janet Stanley, Associate professor/Principal Research Fellow, Melbourne Sustainable Society Institute, University of Melbourne

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

What did the High Court decide in the Pell case? And what happens now?


Ben Mathews, Queensland University of Technology

Two judges in the High Court of Australia this morning referred Cardinal George Pell’s application for special leave to appeal his convictions to a full bench of the High Court.

While not a full grant of special leave, this is favourable to Pell, as dismissing the application would have finalised the case and his convictions.

When the High Court hears the case in coming months, it can reject or grant the special leave application. If granted, it can then allow or dismiss the appeal.

The case is exceptionally complex and the final outcome is difficult to predict. Allowing leave to appeal does not guarantee the appeal will succeed. Here is what might happen next.

What happened with the convictions?

In December 2018, a jury unanimously found Pell guilty of five sexual offences against two 13-year-old choirboys, committed when he was Archbishop of Melbourne from 1996-97. The offences were one count of sexual penetration of a child aged under 16 through forced oral sex, and four counts of an indecent act with or in the presence of a child aged under 16. He was sentenced to six years’ prison with a non-parole period of three years and eight months.

What happened with the failed appeal?

In August 2019, Victoria’s Court of Appeal dismissed Pell’s appeal against these convictions by a 2:1 majority decision. The background is summarised elsewhere. The key issue was whether the verdicts were “unreasonable” or could not be supported on the evidence. The question was whether, given the evidence, it was “open to the jury” to be satisfied beyond reasonable doubt the accused was guilty.

It is not enough to overturn a guilty verdict if the court merely finds a jury “might have” had a reasonable doubt. Rather, the court must find that, on its assessment of the evidence, it was not open to the jury to have been satisfied of guilt beyond reasonable doubt. So the evidence must have “obliged” the jury to reach a not guilty verdict. Because of the jury’s role as tribunal of fact, setting aside a guilty verdict is “a serious step” (see the case M v R).

The majority judges, Chief Justice Anne Ferguson and Justice Chris Maxwell, concluded the guilty verdicts were open to the jury. They did not have a doubt about the complainant’s truthfulness or the cardinal’s guilt. They made crucial findings after careful and cogent reasoning, considering each aspect of the defence case.




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First, the complainant was credible and reliable. His account was consistent and detailed. His recalled detail of the sacristy layout enhanced his credibility and independently confirmed his account, as it was not normally used by the archbishop.

Second, the majority judges evaluated each defence claim individually and collectively. They rejected the claim that the “opportunity” testimony (defence witnesses’ statements about where they, Pell and the choirboys would likely have been at relevant times) made the guilty verdicts unreasonable. Essentially, this testimony was not deemed sufficiently strong to make the verdict unreasonable or “not open”. Its effect was “of uncertainty and imprecision”. There was evidence showing “a realistic opportunity” for the offending.

The dissenting judge, Justice Mark Weinberg, gave extensive reasons. On his interpretation of the “opportunity” testimony – including statements by two witnesses about customarily being with Pell at relevant times – there was a “reasonable possibility” of an effective alibi for the first four offences. Weinberg himself had “a genuine doubt” about Pell’s guilt, thought there was a “significant possibility” the offences had not been committed, and inferred the jury ought to have had this doubt.

The application for special leave to appeal to the High Court

The High Court does not lightly give leave to appeal. It can only grant leave if:

  • the proceedings involve a question of legal principle; or

  • the interests of the administration of justice (generally, or here) require consideration of the earlier judgment.

Pell’s team made two arguments, relying on the dissenting judgment. First, they argued the majority’s approach to the “open to the jury” test was wrong, effectively requiring the applicant to exclude any possibility of the offending to have occurred, which reversed the onus and standard of proof. They also argued the majority’s belief in the complainant was not enough to overcome doubts raised by the opportunity testimony, and the alibi evidence had not been eliminated.

Second, they argued there was sufficient doubt about whether the offending was possible. This, they said, made the verdicts unreasonable, given the complainant’s account required them to be alone in the sacristy for five to six minutes. They argued that after mass and five to six minutes of “private prayer time” there was a “hive of activity” near the sacristy, and the majority incorrectly found it was reasonably open to the jury to find the offending happened during this period.

The director of public prosecutions argued there simply was no such error by the majority in applying the test, and the verdicts were not unreasonable.

In large part, the special leave application turned on the different approaches to whether the “opportunity evidence” was sufficiently strong to create enough doubt that it was “not open to the jury” to find Pell guilty beyond reasonable doubt.




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What did the High Court say?

The transcript had not been released at the time of writing, but the two judges referred the application for special leave to hearing by a full bench (five or seven members) for argument as on an appeal. There, the full High Court can reject or grant the special leave application.

On one view, this is surprising. Applications arguing an unreasonable verdict in child sexual offence cases are typically dismissed (for example, O’Brien; in contrast GAX).

The High Court generally does not grant leave simply due to an alternative interpretation of the facts. The majority judgment in the appeal accurately stated the test. It applied the test by carefully analysing all the arguments and testimony individually and collectively, applying cogent reasoning in independently assessing the sufficiency and quality of the evidence. It weighed the evidence and expressed an independent conclusion about whether on all the evidence it was open to the jury to be satisfied of guilt beyond reasonable doubt.

On the other hand, the two High Court judges may reasonably feel there are important issues of legal principle and justice to consider, and that such a significant case warrants full consideration at all levels by the entire court.

What happens now?

The full hearing of the special leave application will occur in 2020. If leave is then granted, the appeal will proceed. If the appeal succeeds, the court can grant a new trial, or reverse or modify the prior judgment.

However, if special leave is refused at the full hearing, or granted but the appeal fails, the convictions stand and no further appeal is possible.




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For the complainant and many survivors, especially of clergy abuse, this decision will be confronting. They will hopefully be able to draw on reserves of resilience, hope, and any support services if necessary, while awaiting the High Court’s final decision.The Conversation

Ben Mathews, Professor, School of Law, Queensland University of Technology

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