Social security and domestic violence

The Australian Law Reform Commission has sought public comment (by 21 April 2011) on its 41 page issues paper [PDF] on Family Violence and Commonwealth Laws (Social Security).

The issues paper is the last of four regarding the Family Violence and Commonwealth laws. It precedes a discussion paper for release mid-2011. The ALRC inquiry encompasses child support and family assistance law, immigration law, employment law, social security law and superannuation law and privacy provisions in relation to those experiencing family violence. The expectation is that the Commission will identify improvements to relevant legal frameworks to protect the safety of those experiencing family violence, in particular addressing legislative arrangements across the Commonwealth that inhibit effective support of people experiencing family violence. The ALRC will also consider whether the extent of sharing of information within the Commonwealth and with state/territory agencies is appropriate.

The current issues paper deals with the Social Security Act 1991 (Cth), Social Security (Administration) Act 1999 (Cth) and Social Security (International Agreements) Act 1999 (Cth). It notes that -

Lack of independent financial resources for victims of family violence is a major cause of homelessness.3 Access to independent financial resources, such as those provided under social security law, can provide economic security and independence to facilitate the safety of those experiencing family violence—for example, by enabling victims of family violence to leave a violent relationship, become financially independent or seek alternate accommodation.

criteria and by exemptions from participation, activity or administrative requirements. Without exemptions, such requirements may be too onerous for a victim of family violence and, as a result, they may have their income support cut off, possibly compromising their safety and ability to leave a violent situation.
13.
On the other hand, in certain situations, social security payments may also facilitate economic abuse and duress by family members.

The ALRC has identified a number of issues relevant to the safety of victims of family violence in Commonwealth social security law and practice. Family violence has the potential to affect eligibility for, and rates of payment of, a range of social security benefits. In particular, family violence may have implications in relation to:

• how relationships are defined—for example, whether a person is considered to be a member of a couple, or independent of family support;

•compliance with various activity, participation and administrative requirements attached to certain social security payments;

•how social security payments are administered; and

•whether social security and income management measures can be improved to provide better protection of the interests of victims who have left, or wish to leave, violent relationships.

The paper notes recurrent concern regarding the inadequacy of social security payments -

While the amounts received by victims of family violence may be relevant to protecting their safety, this aspect of social security—and its budgetary and financial implications—is not a focus of this Inquiry. Reforms to address these issues would be systemic, affecting calculations for different social security payments and, as a result, have an impact on a much broader range of Centrelink customers than just victims of family violence.

It asks 45 questions -

1 Should the Social Security Act 1991 (Cth) and/or the Social Security (Administration) Act 1999 (Cth) be amended to insert a definition of ‘family violence’ consistent with that recommended by the ALRC/NSWLRC in Family Violence — A National Legal Response (ALRC Report 114)?

2 In what circumstances should Centrelink staff be required to inquire about the existence of family violence when dealing with Centrelink customers?

3 Should Centrelink application forms (including electronic forms), correspondence and telephone prompts directly seek information about family violence? For example, should a question about family violence be included on all forms?

4 Where family violence is disclosed or identified, do Centrelink staff notify victims effectively about eligibility criteria for payments and exemptions, including any corresponding exemptions and requirements for child support?

5 In what circumstances, if any, should information about family violence be shared between Centrelink and other government agencies, such as the Child Support Agency?

6 How does Centrelink collect information about family violence when it is identified?

7 Are Centrelink staff and social workers able to access information about persons who have identified themselves as a victim of family violence as to whether they have obtained a protection order or similar? Should Centrelink staff and social workers be able to access the national register recommended in Family Violence — A National Legal Response, Report 114 (2010)?

8 In practice, is the possibility of family violence considered by Centrelink staff before deciding to interview a partner or a parent?

9 When contact with a partner or a parent is not appropriate due to the possibility of family violence, on what information should family violence be assessed?

10 Are Centrelink customers aware that Centrelink may decide not to contact partners or parents if the customer is a victim of family violence?

11 In practice, do decision makers adequately consider the existence of family violence when making determinations about eligibility criteria or exemptions for certain social security payments?

12 Should the criteria in s 4 Social Security Act 1991 (Cth) for determining whether a person is a ‘member of a couple’ be amended clearly to take into account the existence and effect of family violence?

13 Should further guidance be provided in the Guide to Social Security Law about the implications of family violence under the criteria in s 4 Social Security Act 1991 (Cth)?

14 In practice, is family violence adequately considered in determining separation under one roof? If not, how should family violence be taken into consideration?

15 When contact with a partner is not appropriate due to family violence, how should family violence be assessed?

16 In practice, is family violence adequately taken into consideration in the exercise of the discretion under s 24 of the Social Security Act not to treat a person as a member of a couple?

17 Should the ‘special reason’ discretion in s 24 of the Social Security Act be amended expressly to require the existence and effects of family violence to be taken into account? Would this amendment be required if s 4 is amended in this way?

18 What, if any, further guidance should be provided in the Guide to Social Security Law in relation to exercising the discretion under s 24 to take into account the existence and effect of family violence?

19 In what ways might access to Youth Allowance, Disability Support Pension and Pensioner Education Supplement be improved for victims who have left their home because of family violence? For example, does the criterion for a person to be considered ‘independent’ adequately take into account the existence of family violence? Should family violence be expressly referred to in this context?

20 In practice, is the possibility of family violence considered by Centrelink staff before deciding to contact a parent?

21 When contact with a young person’s parent is not appropriate, due to the possibility of family violence, how should claims about family violence be assessed?

22 In what ways, if any, should the Guide to Social Security Law be amended in relation to the ‘continuous support’ criteria to improve the safety of victims of family violence? For example, should specific provisions be made for victims of family violence who need to supply asset and income details from a parent?

23 Should the requirement of parental consent for a person under 18 years of age to be paid directly be waived for victims who have left home because of family violence?

24 Do the provisions regarding the requirement for original proof of identity documents and tax file numbers create barriers for victims of family violence? Should further measures be put in place to ensure that victims of family violence who have had to leave their homes because of family violence are not required to return to the home or have contact with an abusive family member?

25 What reforms, if any, should be considered in relation to the qualifying residence periods or newly arrived residents’ waiting period, for victims of family violence? For example: (a) is the 10 year waiting period for the Age Pension and the Disability Support Pension unreasonable or impractical for victims of family violence; and (b) should the Social Security Act 1991 (Cth) be amended so that there is an exemption from waiting periods for newly arrived residents for victims of family violence?

26 What measures, if any, might be taken to address any difficulties faced by victims of family violence when they must comply with activity and participation tests, Employment Pathway Plans and/or administrative requirements? For example, are the current exemption periods reasonable for victims of family violence?

27 In practice, are Centrelink customers aware of the exemptions — including ‘reasonable excuse’ — available in circumstances of family violence? If so, are victims of family violence likely to use the exemptions?

28 Should the Social Security Act 1991 (Cth) be amended expressly to provide for waiver of debt in situations where a person is subject to duress, undue influence or economic abuse? What processes should be in place to determine whether such circumstances exist?

29 Should social security law or practice be amended in relation to nominee arrangements to minimise the potential for financial abuse by people holding nominee authority? For example, should the Social Security Act 1991 (Cth) be amended to recognise other legal authorities of a person nominated by the social security recipient, such as under powers of attorney or enduring guardianship?

30 improved for victims of family violence? For example, should Crisis Payment be ‘wrapped up’ with Special Benefit?

31 Should Crisis Payment be available to those who are otherwise ineligible for a social security pension or benefit but due to extreme circumstances of family violence are placed in financial hardship?

32 Do claim periods and eligibility criteria for Crisis Payments adequately reflect the breadth and nature of family violence?

33 What evidence is, or should, be necessary to determine whether family violence amounts to an extreme circumstance for the purpose of Crisis Payment?

34 Do the provisions for Rent Assistance in the Social Security Act 1991 (Cth) adequately address the situation where a person using family violence defaults on mortgage repayments on the house in which the victim is living? Should the definition of ‘rent’ in s 13(2) of that Act expressly include mortgage repayments where family violence is an issue?

35 In practice, are Centrelink customers aware of, and do Centrelink customers make use of, the option to have their payments made weekly? In practice, if requested, are victims of family violence provided with weekly payments?

36 Should victims of family violence who are receiving weekly payments be eligible to receive Crisis Payment?

37 Should family violence be an example of ‘exceptional and unforeseen circumstances’ in the Guide to Social Security Law when considering whether to make an urgent payment? Are the current payment arrangements — such as weekly payments — available to victims of family violence sufficient?

38 Should family violence be included as an indicator of vulnerability for the purposes of administering the ‘vulnerable welfare payment recipients’ income management provisions?

39 If so, what definition of family violence should apply? What additional decision-making principles or guidelines may be desirable—in particular, taking into account that a person may be a victim or person using family violence (or both)?

40 Should the income management regime include provision for people experiencing family violence to be exempted from income management in specified circumstances, where to do so would assist them to take steps to prevent or reduce violence?

41 What changes could be made to law or practice relating to the administration of income management accounts to assist welfare recipients who are victims of family violence? For example, are there alternatives to stored value cards that might provide additional flexibility or portability, such as food stamps or a streamlined access to cash in periods of crisis?

42 Should travel or other crisis needs, where a person needs to escape family violence, be included in the definition of ‘priority needs’ for the purposes of the income management regime?

43 Should voluntary income management of people experiencing family violence be adopted more broadly and, if so, how should this done? For example, what amendments to the compulsory income management provisions would be required?

44 Is there any evidence that income management has improved the safety of people experiencing family violence?

45 Are there any other ways in which Commonwealth social security law and practice could be improved to better protect the safety of people experiencing family violence?

Bang

Utah - land of the free, magic seer stones, golden tablets, retrospective baptism of ancestors and other fiddlefaddle - has enacted a State Firearm Designation statute that establishes the Browning M1911 as the official state firearm. Utah's example will presumably be followed by other states and perhaps we'll see state knives and other nasties.

The statute amends 63G-1-601 (as renumbered and amended by Laws of Utah 2008, Chapter 382). The gun supposedly symbolises "freedom and empowerment". No mention of death, responsibility or domestic violence.

Section 63G-1-601 now reads -

State symbols.

(1) Utah's state animal is the elk.

(2) Utah's state bird is the sea gull.

(3) Utah's state centennial astronomical symbol is the Beehive Cluster located in the constellation of Cancer the Crab.

(4) Utah's state centennial star is Dubhe, one of the seven bright stars composing the Big Dipper in the constellation Ursa Major.

(5) Utah's state centennial tartan, which honors the first Scots known to have been in Utah and those Utahns of Scottish heritage, shall have a pattern or repeating-half-sett of white-2, blue-6, red-6, blue-4, red-6, green-18, red-6, and white-4 to represent the tartan worn anciently by the Logan and Skene clans, with the addition of a white stripe.

(6) Utah's state cooking pot is the dutch oven.

(7) Utah's state emblem is the beehive.

(8) Utah's state firearm is the John M. Browning designed M1911 automatic pistol.

(9) Utah's state fish is the Bonneville cutthroat trout.

(10) Utah's state flower is the sego lily.

(11) Utah's state folk dance is the square dance, the folk dance that is called, cued, or prompted to the dancers and includes squares, rounds, clogging, contra, line, and heritage dances.

(12) Utah's state fossil is the Allosaurus.

(13) Utah's state fruit is the cherry.

(14) Utah's state vegetable is the Spanish sweet onion.

(15) Utah's historic state vegetable is the sugar beet.

(16) Utah's state gem is topaz, as is prominently found in the Thomas Mountain Range in Juab County, Utah.

(17) Utah's state grass is Indian rice grass.

(18) Utah's state hymn is "Utah We Love Thee" by Evan Stephens.

(19) Utah's state insect is the honeybee.

(20) Utah's state mineral is copper.

(21) Utah's state motto is "Industry."

(22) Utah's state railroad museum is Ogden Union Station.

(23) Utah's state rock is coal.

(24) Utah's state song is "Utah This is the Place" by Sam and Gary Francis.

(25) Utah's state tree is the blue spruce.

The state cooking pot? The state vegetable and the state historic vegetable? The state grass? Nothing like cultural OCD.

Different Strokes

Reading the thought-provoking 'Barebacking and the 'Cult of Violence’: Queering the Criminal Law' by Chris Ashford in 74 The Journal of Criminal Law (2010) 339-357 [PDF].

Ashford explains that -

This article seeks to revisit the law in relation to the sexual phenomenon of barebacking. Drawing upon queer theory, the article seeks to evaluate critically the development of the criminal law in relation to the practice of ‘unsafe’ sex by men with other men, known as barebacking, along with the broader casting of the judiciary as sexual custos mores. It will argue that the present heteronormative legal and cultural framework largely reflects a focus upon the 'good gay', de-sexed and constructed within a rights discourse, in contrast to Stychin's 'bad queer', sexual and defiant of a narrow heteronormative rights agenda, and embracing 'unsafe' and 'deviant' sexual practices.

This article seeks to move the analysis of the criminal law on from the doctrinal debates that have dominated thus far, and onto a more theoretical exposition of the criminal law regarding barebacking as erotic play.

He concludes that -

If it is accepted that paraphilias, such as the fetishisation of HIV transmission, are 'ineradicable once established', then we must accept that legal control will not prevent this behaviour from taking place. The law can therefore only serve to punish these acts and that is what it does in relation to certain acts of sadomasochism and barebacking. The violent pornography law in the form of the Criminal Justice & Immigration Act 2008 has a similar 'cloak' of preventing certain forms of sexual behaviour. If we look beneath this cloak, we discover a law that is just as wrapped in heteronormative power as Devlin’s 1959 Maccabean lecture was.

Brown, and the more recent HIV transmission case law reveal questions of jurisprudence, philosophy and the 'appropriate role of law in society, even of the nature of society itself'. They reveal a judicial view of society that is rooted in conservative and heteronormative values. Yet, the judiciary are not alone in taking this construction of society. The dearth of literature advancing a pro-barebacking queer perspective on the law is palpable. Those who do speak out, like Erik Remes, have received death threats, or are accused of ‘giving ammunition’ to homophobes, as in the case of Tim Dean.

Susan Edwards, writing on Brown commented that ‘it is an intellectually barren advocate of civil liberties who argues that infliction of harm in auto-erotic arousal of the proportions which constitute ABH should not be a crime. The law is about protecting from harm, the weak and the vulnerable, not for protecting the excesses of the cruel and violent, to satisfy their libidos’. Whilst it is possible that Edwards might take a different approach from Brown in the changed political and social context of today; it is perhaps also reasonable to assume that Edwards’s analysis would extend to barebacking cases.

Far from being ‘intellectually barren’, the queer analysis advanced in the course of this article seeks to move beyond the narrow heteronormative, liberal understanding of rights that has thus far informed the law in this area. One’s libido should not need defending from the State when individuals have come together in their own construction of consent.

In a 2006 article, Michael Shernoff noted that ‘it is clinically naïve and inappropriate for any professional to approach this issue with rigid ideas about what people should be doing and why’, whilst Burris et al., having reviewed some US empirical data and theoretical arguments, concluded: ‘The criminalization of HIV has been a strange, pointless exercise in the long fight to control HIV’.

The evolutionary approach of law as a responder to social change, advocated by Lord Mustill, may yet see the emergence of a new approach to barebacking and HIV transmission within criminal law. However, Judge LJ’s statement in Dica that 'in our judgment, interference of this kind with personal autonomy, and its level and extent, may only be made by Parliament' suggests that Brown might be decided differently today but greater focus by mainstream Westminster politicians is not likely to result in a radical shift either in favour of BDSM or barebacking.

Moreover, the abject failure of the BDSM community to advance the law relating to sadomasochism, despite long-standing radical assertions of identity within the academic community and beyond, does not suggest much cause for optimism for any pro-barebacking community. Nonetheless, queer legal theory offers new arguments to re-evaluate this area of criminal law and the debate will no doubt continue.

Decaffeinated murderabilia

Given my distaste for murderabilia - sketches, nail clippings, used underwear of serial killers and so forth - I'm saddened but not very surprised to encounter Collectible Spoons of the 3rd Reich (Trafford, 2009) by James Yannes.

The publisher explains -

Collectible Spoons of the 3rd Reich is a detailed, heavily illustrated reference book containing relevant historical exposition on many of the personal, organizational and commemorative spoons of the 3rd Reich period from 1933 to 1945. These spoons, unlike most other collectibles from this period, were actually owned and used daily by the people and organizations of those times. The book includes many spoon types, for example: Hitler’s personal silverware, Red Cross, SS, the U-47 etc. With over 200 photos / graphics and over 19,000 words of text, the book extensively explores the relevant historical highlights which in turn illuminate this unique period in history as reflected by the spoons. These spoons are history that you can hold in your hand and were once in the hands of the German history makers of the 3rd Reich era. As the years pass, the 3rd Reich era will move from the monster of history to just plain history as did the Napoleonic era and like Napoleon collectibles, there is increasing interest in acquiring 3rd Reich collectibles, although understandably relatively modest in our lifetime. Thus, this book should be of interest to the collector and educational for the casual reader of history.

What next? Boot polish tins of the Third Reich?

Consumer Fraud

the Australian Institute of Criminology has released its 74 page 'Consumer fraud in Australasia: Results of the Australasian Consumer Fraud Taskforce online Australia surveys 2008 and 2009 (Technical and Background Paper no. 43) [PDF] by Carolyn Budd & Jessica Anderson.

The paper comments that -

Those who perpetrate consumer scams use a wide range of deceptive practices and methods of communication. However, all aim to trick unsuspecting consumers into parting with money or information, often to criminals located overseas. Phishing attacks, lottery and prize scams, financial investment scams and advanced fee fraud are just a few of the more common scam varieties that are used in an attempt to gain either money or personal details that will eventually be used for financial gain by offenders. The increased use of electronic forms of communication and the ease of sending mass scam invitations via the Internet has also resulted in an increase in the number of scam requests disseminated globally.

Scam invitations may appear benign to those who receive them and choose not to respond. This form of spam may be seen as an unfortunate consequence of using the Internet, however, scams can cause serious financial and other harms to those who are victimised, as well as to the wider community. Consumer fraud has been estimated to cost Australia almost $1b annually, although the full extent of the losses is unknown as many choose not to report their experiences officially. Although victims of scams can lose as little as $1, some send substantial amounts to criminals, occasionally exceeding many hundreds of thousands of dollars. Those who send such large amounts frequently feel ashamed of what they have done, or apprehensive that they might have acted illegally. Victims may also receive little sympathy for having being victimised and may be blamed for being gullible. These factors act to deter victims from formally reporting the scam to police. When the full circumstances of cases are known, however, the sophistication of the deception makes it clear that victims have been enticed by a serious and concerted campaign of trickery which preys on their weaknesses and vulnerabilities.

The Australasian Consumer Fraud Taskforce (ACFT) includes 20 government regulatory agencies and departments in Australia and New Zealand that work alongside private sector, community and non-government partners to prevent fraud. In order to understand the dynamics of consumer fraud victimisation, the ACFT has conducted a range of fraud prevention and awareness-raising activities since 2006. One key activity of the ACFT is to hold an annual consumer fraud survey to obtain a snapshot of the public’s exposure to consumer scams, to assess their impact, to determine how victims respond and to identify any emerging typologies and issues.

This report presents the results of surveys conducted in conjunction with the 2008 campaign that focused on Seduction and Deception Scams and the 2009 campaign that focused on sending the message — Scams Target You: Protect Yourself, Don’t Be a Victim of Scammers and Fight the Scammers. Don’t Respond. Overall, both surveys found that despite most respondents indicating that they had received a scam invitation over the specified 12 month period, the majority did not respond. Invitations sent by email remained the most common method of receiving an invitation, with lottery scams attracting the highest number of victims in 2008 whereas in 2009, work from home scams were the most common way respondents were scammed.

Although the survey relies on self-reported data, it still provides a useful means of identifying the nature of victimisation and for identifying areas for further research into consumer fraud. The links identified between scam victimisation and factors such as age, income, reporting and jurisdiction could be used to develop more strategic consumer fraud awareness campaigns that focus on the groups more vulnerable to scam victimisation. The relationships between these variables and victimisation could then be explored more fully using representative samples of the population, or in-depth data collection techniques such as interviewing of those who have been defrauded. With a more extensive understanding of who is victimised and why, more effective scam prevention measures can be enacted.

Specifically -

In 2008, 919 people responded to the Consumer Fraud Survey and in 2009, there were 708 respondents. The results were not combined in the analyses conducted in this report, as the surveys used different sampling frames and the questions were altered slightly which made direct comparisons between questions difficult. In both the 2008 and 2009 Consumer Fraud Surveys, the majority of people who received a scam invitation did not respond and the main method of receiving a scam invitation was via email. In 2009, the types of scams affecting respondents differed from previous years, with work from home scams attracting the most victims, compared with previous years where the lottery scam attracted the most victims. This is possibly due to the evolution of scam invitations, but may also be a result of the inclusion of the new scam categories included in the 2009 survey.

Key findings were -

Being the victim of a scam increased the likelihood of reporting a scam to a formal agency.

• Those who sent money were more likely than those who did not send money to report a scam to a formal agency (eg ACCC, police, Consumer Affairs etc) and family and friends (informal reporting).

• Those who sent personal information were more likely than those who did not send personal information to report the scam to a formal agency. Those who sent personal information were more likely than those who did not send personal information to report to the scam in general (ie either family and friends or a formal agency).

• There was a statistically significant relationship between age and reporting, with the 25–34 year age group less likely than expected to report a scam to either a formal agency or family and friends; and the 55–64 year age group more likely than expected to report a scam to either a formal agency or family and friends.

• respondents from Western Australia were less likely to respond positively to a scam; and respondents from Tasmania were more likely to respond positively to a scam.

• being a victim significantly increased a respondent’s perception that all scams are criminal offences; and victims were more likely to consider work from home scams as a crime.

• respondents from New South Wales were more likely to report a scam; and respondents from Western Australia were less likely to report a scam.

Comfortable with dogs

From the Ivan Roots biography, in the ODNB, of Sir Charles Firth (1857-1936) -

Firth's private life, about which he was unforthcoming (his son was never mentioned in his Who's Who entries), was modest and even, considering his wealth, austere. The great working library at 2 Northmoor Road could hardly be counted an extravagance. As regius professor he was a fellow of Oriel, where he took his part in college life, dining often in hall and enjoying conversation with fellow academics. He was a member of the Athenaeum. Somewhat pessimistic, he was not without a sense of humour and, very occasionally, showed a flash of wit. Photographs in later life portray a solid bearded figure, in thick clothing and heavy footwear - he was slightly lame - with a watch-chain resting on an ample stomach; a pet dog looks comfortable with him. Like Richard Cromwell, whose article he wrote for the Dictionary of National Biography, he was a heavy smoker; like him, too, he lived to a great age. He died on 19 February 1936 at the Acland Nursing Home, 25 Banbury Road, Oxford, and was buried on 21 February at Wolvercote. In his will he declared that his widow was to select what she wished to keep from among his books, prints, and other possessions; the remainder was to go to Sheffield University, maintaining the Firth family connection.

Intersex and law reform

The ACT Law Reform Advisory Council has been asked to inquire "into the legal recognition of transgender and intersex members of the ACT community", with detailed advice on whether any changes to the Territory’s current law are needed to ensure protection of human rights and address any gaps in the legal rights of transexual and intersex people.

ACT Attorney-General Simon Corbell commented that

The Council's inquiry will provide an opportunity for the public to comment on the matter. A process for this consultation will be announced soon.

Corbell indicated that the Government has worked closely with Law Reform Advisory Council chair Associate Professor Simon Rice to develop terms of reference for a meaningful examination of the Territory’s laws.

Information about the inquiry, including the terms of reference, will be released in future.

Cybercrimes

Reading 'The True Identity of Australian Identity Theft Offences: A Measured Response or an Unjustified Status Offence' by Alex Steel in 33(2) UNSW Law Journal (2010) 503-531 and 'Operation Titstorm: Hacktivism or Cyber-Terrorism?' by Kieran Hardy in 33(2) UNSW Law Journal (2010) 474-502

Steel comments that -

Much has been written about identity theft, with many making hyperbolic claims that it is the ‘fastest growing crime in the world’ or the ‘crime of the millennium’. In the last few years, Australian jurisdictions have felt the need to enact offences that are described as identity theft or identity crime offences, and are specifically targeted to deal with this phenomenon by prohibiting the possession of personal information with intent to commit further crimes. This poses the question whether such laws are properly framed and amount to a measured response to a new criminal phenomenon, or whether they are instead overly broad and in violation of fundamental legal principles. This article provides an analysis of those new laws.

After defining what is meant by identity theft and identity crime it provides an overview of some of the differences in the nature of digital crime that have led to calls for specific legislation, and some of the problems that face traditional approaches to investigating and preventing fraud. It goes on to examine the specific approaches taken in Australian identity theft law, considering whether the prohibited subject of the offences – identification information – is defined too widely. The core behaviour prohibited – possession – is then examined in detail. The article argues that possession is an inappropriate basis for criminalisation on both theoretical and practical grounds, and illustrates this by a comparison with the concept’s use in insider trading and child pornography offences. Similar issues are raised with the ‘dealing in information’ offence.

It is argued that the inadequacies of these provisions are the outcome of an approach to law making that creates criminal liability too early in the chronology of planning and executing crime. As a result the offences fail to exhibit sufficient external elements to satisfy fundamental requirements of the rule of law, and place too much unfettered discretion in the hands of law enforcement.

Hardy's discussion of hacktivism notes that -

On 10 February 2010, an internet based group of protesters calling themselves ‘Anonymous’ launched a cyber-attack on the Australian Parliament House website. Aptly named ‘Operation Titstorm’, the attack was launched by the group to protest against the Rudd government’s plans to introduce a mandatory internet filter banning pornographic images of animated characters, small breasted women and female ejaculation. It brought down the website for three days by flooding it with network traffic – up to 7.5 million requests per second – and it bombarded parliamentary email addresses with pornographic material (ironically, of the very kind the government intends to ban). It also plastered a selection of this questionable material across the Prime Minister’s homepage.

The message above was posted on an online activism forum in response to the attacks. Evidently, some members of Anonymous remain concerned that their activities may leave the realm of mischievous online protest and enter the largely uncharted waters of ‘cyber-terrorism’. On first glance, the attacks do not fit into what the general public would probably define as a 'terrorist act'. Nonetheless, important questions remain about the extent to which politically motivated cyberattacks will qualify as terrorism under Australian law.

This article analyses the facts of Operation Titstorm under the current definition of a terrorist act in the Criminal Code Act 1995 (Cth) (‘Code’). Although Operation Titstorm has not been, and most likely will not be, prosecuted under the legislation, this analysis is useful because it brings out some of the problems with applying the current anti-terrorism law framework to politically motivated cyber-attacks. Instead of first defining what is or is not an act of cyber-terrorism, this paper works inductively through the requirements of the Australian definition, examining what will qualify as an act of cyberterrorism under Australian law. It then considers whether any adjustments are necessary to conform to an appropriate definition.

Part II tests the facts of Operation Titstorm against the definition of a terrorist act under section 100.1 of the Code. Part III argues that only a low harm requirement is needed to prove that the political protest exception in section 100.1(3) does not apply, and that there are not sufficient safeguards in the current legislation to maintain a distinction between acts of ‘hacktivism’ and ‘cyberterrorism’.

To this end, this paper suggests some ways that the legislation could be improved, in order to reduce the risk that acts of hacktivism will be prosecuted as terrorist acts.

In its current form, Australia’s anti-terrorism legislation sets the threshold too low for prosecuting acts of terrorism against electronic systems. While this broad definition will necessarily include acts deserving of the label of cyber-terrorism, it may also include acts of online political protest that are unworthy of the serious penalties involved. This danger results from the low levels of harm and fault required of an act of terrorism against an electronic system in section 100.1(2)(f), combined with the prosecution’s low burden of proving that the political protest exception in section 100.1(3) does not apply.

The definition of a terrorist act in section 100.1 of the Code should be amended to mitigate this danger by including a serious economic harm requirement and an express fault element in section 100.1(2)(f). This would bring Australian’s anti-terrorism legislation in line with definitions of terrorism at international law and in comparable domestic jurisdictions, and with definitions of cyber-terrorism in computer science. It would reduce the risk of prosecuting undeserving offenders, prevent governments from using the anti-terrorism legislation to silence less serious forms of political protest against electronic systems, and avoid any potential chilling effect on the freedom of online political expression.

The government has recognised the vulnerability of Australia’s electronic infrastructure to cyber-attack – as well it should – but it should also recognise the threat to legitimate online protest that the current definition of a terrorist act creates. We need to ensure that our anti-terrorism legislation cannot be used to silence legitimate online political protest, lest things ‘start getting messy’.

Barrister blogs

A nice crisp post by Stephen Warne regarding Australian barrister blogs.

Recommended reading.

Take the money and run

From 'Personal Finance for Dictators: Where to Stash the Cash' by Graham Bowley in the New York Times of 12 March, regarding the slowdown in regime change in Libya -

The former Philippine first lady, Imelda R. Marcos, and her three children were charged with removing 22 crates of Philippine pesos from the country when they fled to Hawaii in 1986.

In Haiti, President Jean-Claude Duvalier and his wife, Michele, withdrew at least $33 million from the country’s central bank, transferring it to foreign accounts, and may have stored some money and jewelry in a safe-deposit box at a Citibank branch on Madison Avenue in Manhattan, according to court papers filed by the Haitian government after he was forced from power in 1986.

The Panamanian dictator, Gen. Manuel Antonio Noriega, was reported to have stashed $5.8 million in denominations of 10s, 20s, 50s and 100s in a file cabinet behind a desk at his home. United States authorities seized the money during the invasion of Panama in 1989.

In 1997, shortly before the forces of Laurent Kabila took power in Congo, formerly called Zaire, aides close to former President Mobutu Sese Seko smuggled crates of diamonds and more than $40 million in cash out of the country on a jet chartered by the South African government, according to The Sunday Independent, a South African newspaper.

Then, in 2003, in the hours before American bombs began falling on Baghdad, one of President Saddam Hussein’s sons, Qusay Saddam Hussein, was said by officials to carry off nearly $1 billion in cash from the vaults of the country’s Central Bank.

The volume of cash was so great — some $900 million in American $100 bills and as much as $100 million worth of euros — that a team of workers took two hours to load the money on three tractor-trailers.

Remote Healing

A friend has pointed me to 'A critical evaluation of the theory and practice of therapeutic touch' by Dónal O’Mathúna, Steven Pryjmachuk, Wayne Spencer, Michael Stanwick & Stephen Matthiesen in (2002) 3 Nursing Philosophy 163–176 as a follow-up to my recent sarcastic comments about the Saniotis & Henneberg 'non-local mind' article in World Futures.

The authors indicate that -

In this paper, the theory and practice of therapeutic touch (TT) is scrutinized from a number of perspectives. Firstly, the alleged close relationship between TT and Martha Rogers' Science of Unitary Human Beings is evaluated. Secondly, the employment of the language of modern physics in Rogers’ theory and TT is critically examined. The authors then review the research literature on TT’s efficacy, completing their critique by discussing the ethical issues involved in the practice of TT. As each of the perspectives considered reveals some concerns, the paper concludes that TT is a questionable intervention, underpinned by a very weak theoretical, clinical and research base.

I doubt that they would be enthused by the World Futures article. Saniotis & Henneberg appear impressed by claims in Dossey's Reinventing medicine: Beyond mind-body to a new era of healing (HarperCollins, 1999) regarding Grad's research on 'therapeutic touch' as healing wounded mice. (Wave the magic hands in the direction of the mice - waving some dried herbs, gizzard of goat or live reptile is so so yesterday compared to quantum mystic hands - and the little critters get better). Grad's research was challenged in 'Therapeutic touch: is there a scientific basis for the practice?' by Philip Clark and Mary Jo Clark in (1984) 33 Nursing Research (1984) 37–41, which suggested serious methodological problems in the study. They reported that -

An examination of published research literature indicates that empirical support for the practice of therapeutic touch is, at best, weak. The results of well-designed, double-blind studies have been transient, of no significance, or are in need of independent replication. Current practice of therapeutic touch is empirically little more than practice of placebo.

Placebo, not 'soul flight', 'remote healing or other quantum holism mumbo jubo.

O’Mathúna et al comment that -

The concepts of modern physics ... do not give a plausible mechanism for TT and should not be used to support the claims of TT practitioners. Indeed, the effects postulated by the theory of TT appear to be at variance with the known properties of all the forces whose existence is accepted by modern physics. Hence, TT may properly be regarded as inconsistent with background knowledge in that science. This inconsistency goes beyond the mere fact that TT’s mechanism of action is unknown. The theory of TT is an attempt to explain certain putative clinical effects in terms of a causal model involving energetic interactions. Yet, this model is contradicted by a large amount of evidence about the nature and limits of physical forces in the universe, and no alternative with a comparable degree of predictive power or consistency with other well-supported knowledge has been formulated. This has two consequences. First, the theory TT possesses is deprived of explanatory power: one mystery is not explained by an appeal to another mystery. Secondly, the evidence that supports the current picture of physical energy should be regarded as evidence against the theory of TT.

They go on to comment that -

Though the practice of TT has been subject to investigation, most TT studies have been limited. There have been no studies into the nature or properties of the energy field so central to the practice.
Prominent proponents admit that no one has managed to measure the interaction between human energy fields or demonstrate that energy is actually directed during TT (Krieger 1979; Quinn 1989). In two studies (Rosa et al 1998; Glickman & Gracely 1998), TT practitioners failed to detect human energy fields at levels distinguishable from chance results. Significant methodological problems were found in Krieger’s own early research (Schlotfeldt, 1973; Walike et al 1975) and problems have persisted in TT research (Clark & Clark 1984; Meehan 1993; Olson et al 1997). In 1994, a University of Colorado committee of professors from various healthcare professions concluded that:

The scientific rationale for TT is not established and can be questioned in several areas.There is not a sufficient body of data, both in quality and quantity, to establish TT as a unique and efficacious healing modality. (Claman 1994,6)

In considering the use and abuse of literature they state that -

Patient advocacy should be based on reliable and accurate information. This requires accurate reporting of the results of all TT research. The burden lies on promoters of new and controversial therapies to demonstrate, beyond reasonable doubt, that they help. In reviewing controversial therapies, the existence of studies with negative or mixed findings should, at the very least, be mentioned. Unsuccessful replications should also be noted. It could be argued, on the grounds of the quality of specific pieces of research, that omissions are necessary when undertaking a comprehensive review of the literature (particularly when systematic reviews are being undertaken). The reviews cited in the next three paragraphs, however, are biased. Rather than consider a study’s quality, the reviewers’ inclusion criterion appears to be simply whether or not it supports TT. This kind of bias is further explored in O’Mathúna (2000).

By failing to incorporate studies with mixed or negative findings or unsuccessful replications, many TT reviews misrepresent research results. For example, Hughes et al (1996) and Olson et al (1997) cite Heidt (1981b) and Quinn (1984), but fail to mention that Quinn (1989) could not replicate those findings. Numerous articles cite two research studies by Wirth that support TT’s wound healing efficacy (see, for example, Jonasen 1994; Schmidt 1995; Mackey 1995; Mulloney & Wells-Federman 1996; Olson et al 1997). However, Wirth subsequently published three other studies with findings that were not supportive of TT’s effectiveness in wound healing (Wirth, 1995). The above reviews did not mention these failed replications, even though the studies were published well in advance of most of the reviews.

Contradictory results within a study should also be noted. For example, Jonasen (1994) and Hughes et al (1996) cite Fedoruk (1984) as finding statistical significance for anxiety reduction. Olson et al (1992) have been cited similarly, again by Hughes et al. and by Schmidt (1995). Both studies, however, found statistical significance only with behavioural measures, and not with physiological measures. General reviews have also reported the results of some studies inaccurately. Jonasen (1994) and Hughes et al. (1996) claimed that Parkes’s (1985) study supported TT’s anxiety-reducing properties. Parkes (1985,84) actually found that ‘therapeutic touch did not reduce anxiety’. Jonasen similarly cited Quinn (1989) as having beneficial results even though Quinn found no statistically significant reduction in anxiety by TT.

I've exhibited my usual irreverence about the existence or efficaciousness of reincarnation, intercessory prayer, remote healing, precognition, remote viewing, dowsing and other parapsychology that features in World Futures and is recurrently legitimated through reference to 'quantum holism'.

The Skeptics Dictionary more gently dismisses remote healing as quackery, commenting that -

Therapeutic touch (TT) is a type of energy medicine whereby the therapist moves his or her hands over the patient’s "energy field", allegedly directing the flow of chi or prana so the patient can heal. TT is based on the belief that each living thing has a "life energy field" which extends beyond the surface of the body and generates an aura. This energy field can become unbalanced, misaligned, obstructed, or out of tune. Energy healers think they can feel and manipulate this energy field by making movements that resemble massaging the air a few inches above the surface of the patient's body. Energy healers also think that they can transfer some of their own life energy to the patient. These airy manipulations allegedly restore the energy field to a state of balance or harmony, to a proper alignment, or they unblock a clog in the field or transfer life energy from healer to patient. This restoration of integrity to the field is thought to make it possible for the body to heal itself.

TT has no scientific basis but it does have a history. It was created by a nurse and a theosophist. Dolores Krieger, Ph.D., R.N., and a faculty member at New York University's Division of Nursing began TT in the early 1970s. She was convinced that the palms are chakras and can channel healing energy. She is the author of Therapeutic Touch: How to Use Your Hands to Help and to Heal (1979) and several other books on TT. Dora Kunz, president of the Theosophical Society of America, was her mentor and an intuitive healer. TT is practiced primarily by nurses, though TT is apparently being practiced worldwide by all kinds of “alternative” healers and laypersons.

Practitioners admit that there has never been any scientific detection of a human energy field. This, they say, is because of the inadequacies of our present technology. One with a trained sense, however, is allegedly able to detect the human energy field and assess its integrity. Despite the obvious metaphysical basis for this quackery, defenders of TT claim it is scientific because it is based on quantum physics.

Dossey's The Power of Premonitions is unfussed, with its author claiming that -

More than an examination of case studies, The Power of Premonitions reveals the world of science and research that proves the human capacity for knowing the future. Experiments consistently show that human beings are as wired to know what's coming next as we are to see, feel, hear and think. Dossey uses cutting-edge science to prove the value of what had long been considered the provenance of mystic charlatans and to show readers how to cultivate their natural abilities.

Yes, buy the book, polish your ESP and you too can forsee the future.

Given that I'm unconvinced, I responded to the current public consultation by the Australian Health Ministers Advisory Council (AHMAC) regarding alternative medicine, challenging proposals to treat reiki (ie TT) and homeopathy as professions.