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



http://www.shutterstock.com

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.




Read more:
From catfish to romance fraud, how to avoid getting caught in any online scam


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.




Read more:
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.

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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Pandemic policing needs to be done with the public’s trust, not confusion


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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Daryll Rowe guilty – but is criminal law the right way to stop the spread of HIV?


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.

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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Why releasing some prisoners is essential to stop the spread of coronavirus


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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It’s not about money: we asked catfish why they trick people online


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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From catfish to romance fraud, how to avoid getting caught in any online scam


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.

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.




Read more:
Victims of child sex abuse still face significant legal barriers suing churches – here’s why


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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Triggering past trauma: how to take care of yourself if you’re affected by the Pell news


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.

George Pell has lost his appeal. What did the court decide and what happens now?



George Pell’s appeal on child sexual abuse convictions has been dismissed.
AAP/Erik Anderson

Ben Mathews, Queensland University of Technology

Victoria’s Court of Appeal today delivered one of the most significant judgments in Australian legal history, dismissing Cardinal George Pell’s appeal against convictions for five child sex offences.

Given Pell’s seniority in the Catholic Church as a former Vatican treasurer, the case is also of worldwide significance. The appeal involved complex legal principles. Here is what you need to know to understand the judgment.

What happened before this appeal?

In December 2018, a jury unanimously found Pell guilty of five sexual offences against two 13-year-old boys, committed while Archbishop of Melbourne. As detailed in the sentencing remarks of County Court Chief Judge Kidd in March 2019, Pell was found guilty of 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.

The first offences were committed in the sacristy of St Patrick’s Cathedral after mass in December 1996. The final offence was committed against one of the boys around one month later. Both victims were choirboys and recipients of choral scholarships at an elite school.




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Pell was sentenced to six years’ prison with a non-parole period of three years and eight months.

In reaching a verdict, the jury relied on detailed evidence of one of the victims about what Pell said and did, and when and where it happened. The other victim began using heroin at age 14 and died of a heroin overdose in 2014, aged 31. This man’s death prompted the surviving victim, aged in his early 30s, to approach police in 2015.

Is it normal for survivors of child sexual abuse to delay disclosure?

Yes. Survivors often disclose only after a significant delay and are reluctant to tell legal authorities. Australia’s Royal Commission Into Institutional Responses to Child Sexual Abuse found that, for those in private interviews, 57% first disclosed as adults and it took an average of 31.9 years to disclose.

A 2013 study of 487 men whose mean age of onset of abuse was 10, found the mean age when first telling was 32.

Is it a problem that the prosecution relied on the complainant’s evidence?

No. Child sexual abuse typically is inflicted in secret, without other evidence, so prosecutions often depend heavily on complainant testimony. The law recognises this: evidence does not have to be corroborated, and the judge must not warn the jury it is dangerous to act on uncorroborated evidence.

Juries make judgments based on the complainant account’s credibility, consistency, detail and truthfulness, and responses and demeanour in cross-examination.

What did Pell argue in the appeal?

There were three grounds of appeal. Two were procedural or technical: the plea of not guilty was not made in the presence of the jury panel; and the defence was not permitted to play a “visual representation” of part of its argument in its closing address.

Essentially, both arguments claimed a “substantial miscarriage of justice”. The court unanimously rejected these arguments.

But the main argument was that the jury’s verdict was “unreasonable or cannot be supported having regard to the evidence”. Pell’s appeal argued it was not open to the jury to be satisfied of guilt, beyond reasonable doubt, based solely on the word of the complainant.

It also argued that it was not possible for Pell to have been in the sacristy either at all, or by himself; it was not possible for the boys to have been in the sacristy unnoticed; and the robes he wore made it impossible to offend in the way claimed.

What was the Court of Appeal required to do when considering this argument?

The law is complex, and whether a verdict is “unreasonable” depends on legal technicalities, not intuitive instincts. Four legal principles need to be understood here.

First, and most important, there is a very high threshold for a court to overturn a jury’s guilty verdict for being unreasonable (see, for example, M or Baden-Clay). This is because, in Australian law, the jury is the constitutional tribunal of fact responsible for deciding guilt or innocence. A verdict will only be overturned in exceptional circumstances showing a clear miscarriage of justice.

Second, the test is whether, on the evidence, it was open to the jury to be satisfied beyond reasonable doubt the accused was guilty.

To win the appeal, the appellant must show the guilty verdict was not open to the jury. It is not sufficient for the court to find a jury might have had reasonable doubt. The evidence must mean no reasonable jury could have returned a guilty verdict; it must have “obliged” them to reach a not guilty verdict.

Third, the appeal court does not retry the case – again, because the jury is the tribunal of fact. The court must independently assess the evidence, but to determine whether the guilty verdict was open to the jury; not simply whether the court itself has a doubt.

Fourth, if a complainant is credible and reliable and the account is detailed, consistent and plausible, it is difficult for an appeal to succeed. On plausibility, courts have accepted that sexual offending can be brazen, influenced by the abuser’s arrogance, power and belief the child will not make a complaint.

What did the Court of Appeal say about this?

The judges rejected it by a majority of two to one. They found the guilty verdicts were reasonable, because they were open to the jury on the whole of the evidence.

The court said there was nothing about the evidence that meant the jury must have had reasonable doubt. It was not enough that one or more jurors might have had a doubt. Moreover, the court did not itself have such a doubt.

The complainant was found to be compelling, clearly not a liar or fantasist, and a witness of truth. He did not embellish the evidence or tailor it to the prosecution. He adequately explained things he could not remember and his explanations had a ring of truth.

What can happen now?

Pell can seek special leave to appeal to the High Court. If the High Court denies permission, the matter is finalised; if given, it will later deliver a final judgment.




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


Save for a successful appeal in the High Court, Pope Francis will likely expel Pell from the priesthood. The family of the second survivor is suing him and or the church for civil damages, as may others. Pell will remain in jail.

It is exceptionally difficult for survivors of child sexual abuse to bring successful criminal complaints, especially against powerful offenders. This judgment may encourage other courageous survivors to make complaints.

Yet many systemic reforms are still required to better facilitate prosecutions of child sexual offences.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.

It’s a new era for Australia’s whistleblowers – in the private sector



Whistleblowing will always take some type of toll, but it need not be career suicide.
http://www.shutterstock.com

Dennis Gentilin, Macquarie University

As strange as it might sound, whistleblowers in Australia have reason to rejoice – so long as they are in the private sector.

Thanks to new laws that came into effect this month, private-sector whistleblowers have a range of new protections. This includes, in certain prescribed circumstances, the prospect of being compensated if they experience adverse outcomes after taking their concerns to the the media.

The timing is ironic, given last month Australia’s federal police launched raids on journalists and media outlets who received and published disclosures from public-sector whistleblowers. If identified and prosecuted, those whistleblowers could face lengthy prison sentences.




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In fact, private-sector whistleblowers now have, for the first time, greater protection than their public-sector counterparts.

What the new laws do

The catalyst for the new laws was a parliamentary inquiry into whistleblower protection established in November 2016. The inquiry’s final report, published in September 2017, made a total of 35 recommendations. Though 19 were rejected by the federal government, the outcome is still a vast improvement on the previous provisions.

For the first time, federal legislation now defines, in broad terms, the following.

Who qualifies as a whistleblower. The list of those protected for making disclosures goes beyond company officers and employees. It includes suppliers, employees of suppliers, and relatives and dependants of officers, employees and suppliers.

What is a disclosable matter. Whistleblower protection isn’t just for disclosing illegal conduct. It also covers “misconduct” or an “improper state of affairs” (not including concerns about personal work-related grievances).

Who to make a disclosure to. To qualify for protection, whistleblowers no longer need to raise their concern through a “formal” whistleblowing channel. They can go to any officer or senior manager in a company, or to an auditor, or to regulators. Disclosures to journalists and members of parliament also qualify for protection in certain prescribed circumstances.

What constitutes detriment. Detrimental outcomes for whistleblowing are not constrained to dismissal or demotion. They include discrimination, harassment or intimidation, harm or injury (including psychological), and damage to property, financial position or reputation.




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Above all, the legislation empowers the courts to order payment of compensation to whistleblowers who experience detriment. To avoid any liability, organisations must demonstrate they have taken steps to protect whistleblowers.

Promoting protection

The prevailing view is that whistleblowing is a sure path to career suicide. The stories that loom large in the public consciousness are those of whistleblowers who, despite acting in the best interests of the organisations that employ them, are ostracised and abandoned.

Whistleblowing, to be sure, is an arduous undertaking that will always take some type of toll. But this prevailing narrative of significant adverse consequences is misleading.

I say this for two reasons.

The first is personal. In 2004, I was one of the whistleblowers in a major governance failure at the National Australia Bank. It led to four colleagues being jailed and senior executives resigning. Despite this, I went on to spend a further 12 years at the bank. The bank endorsed a book I subsequently wrote about the origins of ethical failure. Chairman Ken Henry even wrote the foreword.

The second, more importantly, is the evidence. The world-leading Whistling While They Work Research Project at Griffith University surveyed close to 18,000 people working in public and private sector organisations across Australia and New Zealand. Of the 4,382 respondents who reported wrongdoing in their organisations, 21% said they were treated well by both management and colleagues, compared to less than 13% who said they were treated badly.



There is no denying whistleblowers sometimes pay a significant price, but these results show positive outcomes are possible.

Beyond ‘tick-the-box’ compliance

The new whistleblowing laws aim to increase those positive outcomes and provide avenues for compensation when whistleblowers aren’t treated well.

The challenge for organisations now is making this happen.

A first step is to put in place a whistleblower policy. The legislation requires that all publicly listed and large proprietary companies have one. Among other things, the policy must detail:

  • the internal channels through which whistleblowers can make disclosures
  • how thorough, independent investigations will be conducted
  • how the interests of the whistleblower will be protected.

As important as formal whistleblowing policies and programs are, however, they are not sufficient. Any “tick-the-box” compliance approach will inevitably fail to promote positive outcomes for whistleblowers without an ethical culture.




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Organisations must work hard to create environments that support those who raise concerns, and where leaders listen and take action. This will reduce potential liabilities for organisations and help shift the prevailing narrative surrounding whistleblowing.

We are now in a new era for private sector whistleblowers. Of course, the true litmus test will be when the laws are tested in the courts. But my hope is not just that the courts richly (and deservedly) compensate whistleblowers who suffer detriment. I hope the legislation is a catalyst for organisations to create environments that support whistleblowers, recognising the tremendous value they bring to any workplace.The Conversation

Dennis Gentilin, Adjunct Fellow, Macquarie University

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

Governments are making fake news a crime – but it could stifle free speech


Alana Schetzer, University of Melbourne

The rapid spread of fake news can influence millions of people, impacting elections and financial markets. A study on the impact of fake news on the 2016 US presidential election, for instance, has found that fake news stories about Hillary Clinton was “very strongly linked” to the defection of voters who supported Barack Obama in the previous election.

To stem the rising influence of fake news, some countries have made the creation and distribution of deliberately false information a crime.

Singapore is the latest country to have passed a law against fake news, joining others like Germany, Malaysia, France and Russia.




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But using the law to fight the wave of fake news may not be the best approach. Human rights activists, legal experts and others fear these laws have the potential to be misused to stifle free speech, or unintentionally block legitimate online posts and websites.

Legislating free speech

Singapore’s new law gives government ministers significant powers to determine what is fake news, and the authority to order online platforms to remove content if it’s deemed to be against the public interest.

What is considered to be of public interest is quite broad, but includes threats to security, the integrity of elections, and the public perception of the government. This could be open to abuse. It means any content that could be interpreted as embarrassing or damaging to the government is now open to being labelled fake news.

And free speech and human rights groups are concerned that legally banning fake news could be used as a way to restrict free speech and target whistleblowers.




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Similar problems have arisen in Malaysia and Russia. Both nations have been accused of using their respective laws against fake news to further censor free speech, especially criticism of the government.

Malaysia’s previous government outlawed fake news last year, making it a crime punishable by a fine up to 500,000 Malaysian (A$171,000) ringgit or six years’ imprisonment, or both. The new government has vowed to repeal the law, but so far has yet to do so.

Russia banned fake news – which it labels as any information that shows “blatant disrespect” for the state – in April. Noncompliance can carry a jail sentence of 15 days.

Discriminating between legitimate and illegitimate content

But the problems that come with legislating against fake news is not restricted to countries with questionable track records of electoral integrity and free speech.

Even countries like Germany are facing difficulties enforcing their laws in a way that doesn’t unintentionally also target legitimate content.

Germany’s law came into effect on January 1, 2018. It targets social media platforms such as Facebook and Twitter, and requires them to remove posts featuring hate speech or fake information within 24 hours. A platform that fails to adhere to this law may face fines up to 50 million euros.

But the government is now reviewing the law because too much information is being blocked that shouldn’t be.

The Association of German Journalists has complained that social media companies are being too cautious and refusing to publish anything that could be wrongly interpreted under the law. This could lead to increasing self-censorship, possibly of information in the public interest.

In Australia, fake news is also a significant problem, with more and more people unable to distinguish fake news from legitimate reports.

During Australia’s federal election in May, fake news claiming the Labor Party planned on introducing a death tax spread across Facebook and was adopted by the Liberal Party in attack ads.




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But there has been no serious talk of passing a law banning fake news here. Instead, Australian politicians from all sides have been pressuring the biggest social media platforms to be more vigilant and remove fake news before it becomes a problem.

Are there any alternatives to government regulation?

Unlike attempts to limit or ban content in pre-internet days, simply passing a law against fake news may not be the best way to deal with the problem.

The European Union, which is experiencing a rise in support for extreme right-wing political parties, introduced a voluntary code of practice against online disinformation in 2018. Facebook and other social media giants have since signed up.

But there are already concerns the code was “softened” to minimise the amount of content that would need to be removed or edited.

Whenever governments get involved in policing the media – even for the best-intended reasons – there is always the possibility of corruption and a reduction in genuine free speech.

Industry self-regulation is also problematic, as social media companies often struggle to objectively police themselves. Compelling these companies to take responsibility for the content on their sites through fines and other punitive measures, however, could be effective.




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Another alternative is for media industry groups to get involved.

Media freedom watchdog Reporters Without Borders, for instance, has launched the Journalism Trust Initiative, which could lead to a future certification system that would act as a “guarantee” of quality and accuracy for readers. The agreed standards are still being discussed, but will include issues such as company ownership, sources of revenue, independence and ethical compliance.The Conversation

Alana Schetzer, Sessional Tutor and Journalist, University of Melbourne

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