Tag Archives: crime
Man to face court over alleged rape of Brittany Higgins
AAP/Dean Lewins
Michelle Grattan, University of CanberraA man has been summonsed to face court over the alleged rape of former Liberal staffer Brittany Higgins.
A statement from ACT police on Friday afternoon said the man, aged 26, had been summonsed to appear in court for an alleged sexual assault in 2019.
“Police will allege the man had sexual intercourse without consent at Parliament House on Saturday, 23 March 2019,” the statement said.
It said detectives from ACT Policing’s Criminal Investigations – Sexual Assault and Child Abuse Team had first received a report about the matter in April 2019.
“The investigation remained open and in February 2021 a formal complaint was made. Detectives have since spoken to a number of witnesses and collected evidence as part of the investigation,” the statement said.
It said that on Friday officers “served the man’s legal representative with a summons to appear before the ACT Magistrates Court on September 16 2021.
“The man will face one charge of sexual intercourse without consent”.
The maximum penalty is 12 years jail.
Higgins, who in 2019 was a staffer in the office of Linda Reynolds, then defence industry minister, alleged a colleague raped her in the minister’s office.
Higgins’ making public her allegation had seismic political consequences.
Reynolds faced extensive criticism over her handling of the matter and was moved from her position of defence minister in a subsequent cabinet reshuffle.
Inquiries were set up into the political culture at Parliament House, including one by the Sex Discrimination Commissioner Kate Jenkins, who is to present her final report later this year.
After a review by Department of Prime Minister and Cabinet’s deputy secretary Stephanie Foster, there is to be a one-hour, face-to-face training session for parliamentarians and staff on sexual harassment. The government has made it mandatory for ministers and Coalition staffers to attend.
A body is also being set up to deal with complaints about behaviour in the parliamentary workplace.
Michelle Grattan, Professorial Fellow, University of Canberra
This article is republished from The Conversation under a Creative Commons license. Read the original article.
What is drink spiking? How can you know if it’s happened to you, and how can it be prevented?
Nicole Lee, Curtin University and Jarryd Bartle, RMIT UniversityRecent media reports suggest drink spiking at pubs and clubs may be on the rise.
“Drink spiking” is when someone puts alcohol or other drugs into another person’s drink without their knowledge.
It can include:
- putting alcohol into a non-alcoholic drink
- adding extra alcohol to an alcoholic drink
- slipping prescription or illegal drugs into an alcoholic or non-alcholic drink.
Alcohol is actually the drug most commonly used in drink spiking.
The use of other drugs, such as benzodiazepines (like Rohypnol), GHB or ketamine is relatively rare.
These drugs are colourless and odourless so they are less easily detected. They cause drowsiness, and can cause “blackouts” and memory loss at high doses.
Perpetrators may spike victims’ drinks to commit sexual assault. But according to the data, the most common type of drink spiking is to “prank” someone or some other non-criminal motive.
So how can you know if your drink has been spiked, and as a society, how can we prevent it?
Read more:
Weekly Dose: GHB, a party drug that’s easy to overdose on but was once used in childbirth
How often does it happen?
We don’t have very good data on how often drink spiking occurs. It’s often not reported to police because victims can’t remember what has happened.
If a perpetrator sexually assaults someone after spiking their drink, there are many complex reasons why victims may not want to report to police.
One study, published in 2004, estimated there were about 3,000 to 4,000 suspected drink spiking incidents a year in Australia. It estimated less than 15% of incidents were reported to police.
It found four out of five victims were women. About half were under 24 years old and around one-third aged 25-34. Two-thirds of the suspected incidents occurred in licensed venues like pubs and clubs.
According to an Australian study from 2006, around 3% of adult sexual assault cases occurred after perpetrators intentionally drugged victims outside of their knowledge.
It’s crucial to note that sexual assault is a moral and legal violation, whether or not the victim was intoxicated and whether or not the victim became intoxicated voluntarily.
How can you know if it’s happened to you?
Some of the warning signs your drink might have been spiked include:
- feeling lightheaded, or like you might faint
- feeling quite sick or very tired
- feeling drunk despite only having a very small amount of alcohol
- passing out
- feeling uncomfortable and confused when you wake up, with blanks in your memory about what happened the previous night.
If you think your drink has been spiked, you should ask someone you trust to get you to a safe place, or talk to venue staff or security if you’re at a licensed venue. If you feel very unwell you should seek medical attention.
If you believe your drink has been spiked or you have been sexually assaulted, seeking prompt medical attention can assist in subsequent criminal prosecution. Medical staff can perform a blood test for traces of drugs in your system.
How can drink spiking be prevented?
Most drink spiking occurs at licensed venues like pubs and clubs. Licensees and people who serve alcohol have a responsibility to provide a safe environment for patrons, and have an important role to play in preventing drink spiking.
This includes having clear procedures in place to ensure staff understand the signs of drink spiking, including with alcohol.
Preventing drink spiking is a collective responsibility, not something to be shouldered by potential victims.
Licensees can take responsible steps including:
- removing unattended glasses
- reporting suspicious behaviour
- declining customer requests to add extra alcohol to a person’s drink
- supplying water taps instead of large water jugs
- promoting responsible consumption of alcohol, including discouraging rapid drinking
- being aware of “red flag” drink requests, such as repeated shots, or double or triple shots, or adding vodka to beer or wine.
Shutterstock
A few simple precautions everyone can take to reduce the risk of drink spiking include:
- have your drink close to you, keep an eye on it and don’t leave it unattended
- avoid sharing beverages with other people
- purchase or pour your drinks yourself
- if you’re offered a drink by someone you don’t know well, go to the bar with them and watch the bartender pour your drink
- if you think your drink tastes weird, pour it out
- keep an eye on your friends and their beverages too.
What are the consequences for drink spiking in Australia?
It’s a criminal offence to spike someone’s drink with alcohol or other drugs without their consent in all states and territories.
In some jurisdictions, there are specific drink and food spiking laws. For example, in Victoria, the punishment is up to two years imprisonment.
In other jurisdictions, such as Tasmania, drink spiking comes under broader offences such as “administering any poison or other noxious thing with intent to injure or annoy”.
Spiking someone’s drink with an intent to commit a serious criminal offence, such as sexual assault, usually comes with very severe penalties. For example, this carries a penalty of up to 14 years imprisonment in Queensland.
There are some ambiguities in the criminal law. For example, some laws aren’t clear about whether drink spiking with alcohol is an offence.
However, in all states and territories, if someone is substantially intoxicated with alcohol or other drugs it’s good evidence they aren’t able to give consent to sex. Sex with a substantially intoxicated person who’s unable to consent may constitute rape or another sexual assault offence.
Getting help
In an emergency, call triple zero (000) or the nearest police station.
For information about sexual assault, or for counselling or referral, call 1800RESPECT (1800 737 732).
If you’ve been a victim of drink spiking and want to talk to someone, the following confidential services can help:
– Beyond Blue: 1300 22 4636
– Kids Helpline (5-25 year olds): 1800 55 1800
– National Alcohol and other Drug Hotline: 1800 250 015.
Nicole Lee, Professor at the National Drug Research Institute (Melbourne), Curtin University and Jarryd Bartle, Sessional Lecturer, RMIT University
This article is republished from The Conversation under a Creative Commons license. Read the original article.
US massage parlour shootings should ring alarm bells in Australia: the same racist sexism exists here
Damian Dovarganes/AP
Tegan Larin, Monash UniversityThe recent US shootings at massage businesses in Atlanta should ring alarm bells in Australia. Eight people were killed in the attacks, including four Korean women and two Chinese women.
US authorities are still trying to determine the exact motive behind the attack by a 21-year-old white man, who is a suspected sex buyer.
But some feminist groups, such as Asian Women for Equality, immediately identified misogynist racism as a key element behind this sort of violence. As one member of the group, Suzanne Jay, said,
Men are being trained by the prostitution industry. They’re being encouraged and allowed to orgasm to inequality. This has an impact on Asian women who have to deal with these men.
The global sex trade, feminists have argued,
increasingly contributes to the dehumanisation of all Asian women.
Indeed, it has been reported that the Atlanta shooting suspect explained the attacks were a form of vengeance to eliminate the “temptation” for his “sexual addiction”.
How Australia’s massage businesses operate
Like the US, Australia’s “massage parlours” are associated with the prostitution of Asian women. These venues, outwardly presenting as massage businesses but offering illicit sexual services, make up the majority of brothels in the city I study, Melbourne.
Australia’s commercial sex industry is regulated at the state and territory level, resulting in a patchwork of differing models.
In Victoria, massage parlours are estimated to outnumber legal brothels five-fold. My research on Melbourne’s massage parlours supports this estimate.
Read more:
Will Victoria be the first place in the world to fully decriminalise sex work?
Despite the main purpose of Victoria’s Sex Work Act to “control sex work”, the majority of Victoria’s brothels get around the legislative requirements and controls by operating under the guise of legitimate massage businesses.
Massage businesses are usually considered a general retail premises in most council areas, which do not require a planning permit or registration.
Australia’s sex industry is also heavily reliant on a culture of sexualised racism.
An analysis of online massage parlour advertising conducted as part of my research shows ads commonly feature images of Asian women in suggestive poses. The wording highlights race or ethnicity, with such phrases as “young and beautiful trained girls from Korea, Hong Kong, Taiwan, Singapore, Vietnam, China and Malaysia”.
Read more:
New report shows compelling reasons to decriminalise sex work
In addition to ads, my research also examined online sex buyer review forums. These typically encourage men to include descriptions of “ethnicity, appearance, breast size”, ratings of the women’s body parts and the “services” received.
These sex buyer reviews not only demean and denigrate women, they also promote the sexualised and racist stereotypes that pervade the industry.
Perhaps unsurprisingly, a recent study of sex buyer reviews of Australia’s legal brothels found
that sex buyers actively construct and normalise narratives of sexual violation and violence against women.
The effects of sexualised racism in prostitution
This blatant racism, misogyny and male sexual entitlement is not confined to massage parlour owners or their customers. It’s also embedded in Victoria’s Sex Work Regulations.
The updated regulations now allow advertising to reference “race, colour or ethnic origin of the person offering sexual services”. This means that Victoria’s sex industry legally promotes women from minorities as an eroticised “other”.
Read more:
US has a long history of violence against Asian women
This normalisation of sexualised racism promoted by the sex trade in Australia may have wider effects.
A Korean-Canadian doctor, Alice Han, for example, recounted to the ABC being asked twice in a span of 12 hours in regional New South Wales whether she was a sex worker.
She said this exemplifies “a pattern of demeaning stereotyping and racial profiling” of Asian women in Australia, and the association of Asian women with prostitution more broadly.
Australia’s sex industry also relies on the migration and trafficking of Asian women for its survival.
Indeed, Australia’s sex industry is rife with modern slavery for the purposes of sexual exploitation. Cases have been found in both legal and illegal brothels, signalling the wholesale failure of prostitution legislation in this country.
This raises questions about the model of total decriminalisation being proposed in Victoria. This model seeks to decriminalise not only those exploited in prostitution but those who profit from them, such as pimps, brothel owners and sex buyers.
The best path forward
Australia is increasingly behind the rest of the world when it comes to approaching prostitution from a gender equality perspective.
Indeed, the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) has consistently reprimanded Australia for not meeting its requirements to reduce the demand for prostitution.
In order to address the mix of racism, misogyny and men’s sexual entitlement that prostitution is founded on, Australia must adopt a new national framework. The Nordic or “Equality” model offers one path forward — it decriminalises those working in prostitution, but not those who exploit them.
Ben Gray/AP
This model, which has garnered support from survivors of prostitution and anti-trafficking organisations around the world, includes robust social services to support those in the sex trade and assist them into transitioning to other industries.
We know prostitution relies on the abuse of the world’s most marginalised women and girls in order to function. It is predominantly Asian and migrant women who suffer on the front lines of Australia’s sex trade.
While the national conversation confronting society’s acceptance of sexual violence is well overdue, we cannot ignore the sexism, misogyny and racism bound up in Australia’s sex trade.
Tegan Larin, PhD Candidate Monash University XYX Lab, Monash University
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?
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.
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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.
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.
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.
Read more:
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?
Read more:
Coronavirus: extra police powers risk undermining public trust
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.
Read more:
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.
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.
Read more:
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.
Read more:
Homelessness and overcrowding expose us all to coronavirus. Here’s what we can do to stop the spread
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.
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.
Read more:
What’s your IT department’s role in preventing a data breach?
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.
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
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.
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:
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the proceedings involve a question of legal principle; or
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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.
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.
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