Corporate Disclosure

'Hardening Soft Law: Are the emerging corporate social disclosure laws capable of generating substantive compliance with human rights' by Justine Nolan in (2018) Brazilian Journal of International Law comments 

The aim of this paper is to examine the potential effectiveness and limitations of the emerging corporate social disclosure laws that aim to increase transparency about human rights risks in global supply chains. Globalization has led to the emergence of low cost, efficient (but risky) supply chains that span multiple sourcing countries which exhibit a wide range of economic, political, social, labor and environmental standards. The five laws examined seek to provide mechanisms that aim to reduce the negative human rights impact of business in supply chains. They introduce varying demands on business to map, track and disclose how and where their products are being made. This paper first briefly highlights the preponderance of soft law that defines the business and human rights regulatory framework and guides corporate behavior. It then examines three mandated disclosure laws, the Dodd-Frank Act, the California Transparency in Supply Chains Act and the UK Modern Slavery Act and two due diligence focused laws, the Australian Illegal Logging Prohibition Act and the French Duty of Corporate Vigilance Law. After which, it proposes criteria to strengthen the development and implementation of these laws. It concludes by noting that while these laws are hardening the human rights expectations of business, for them to generate substantive (and not just procedural) human rights compliance they must include: detailed requirements on reporting and due diligence; collaboration with external stakeholders; and compliance mechanisms. Through analysis of these regulatory developments this paper seeks to provide greater understanding of how to shape regulatory responses to governance gaps in transnational supply chains.

VLRC Victims of Crime report

The Victorian Law Reform Commission in a 612 page report tabled last month features some 100 recommendations, including that that the Victims of Crime Assistance Act 1996 (Vic) should be repealed and "replaced with an Act that establishes a new scheme to better help victims recover from a criminal act".

In essence, that scheme would provide state-funded financial and practical assistance to victims of crime, including assistance to "pay for medical expenses, counselling, housing, immediate needs and other things required for their safety and wellbeing". It would be set up and run from the office of the Victims of Crime Commissioner. It would be separate from the court and tribunal system, and not involve perpetrators of crime. It would apply to anyone who has been a victim and suffered an injury as a result of a criminal act, including all sexual offences, some serious property offences and a range of family violence offences. The current Victims of Crime Assistance Tribunal would be abolished. Victims would be entitled to receive a recognition statement which acknowledges the impact of the criminal act on behalf of the state. The Commission recommends that the government should consider an automatic levy on all convicted offenders to help pay for the scheme, but does not say this should be introduced immediately.

The report's executive summary states

Introduction 

This report completes the Victorian Law Reform Commission’s review of the Victims of Crime Assistance Act 1996 (Vic) (VOCAA) as required in response to both the first and supplementary terms of reference provided by the Attorney-General on 22 December 2016, and 7 July 2017, respectively. 

The first terms of reference respond to Recommendation 106 of the Victorian Royal Commission into Family Violence. Fundamentally, the first terms of reference ask the Commission to consider what changes should be made to the VOCAA to better assist family violence victims rebuild their lives and recover. As part of this, the first terms of reference at matter three ask the Commission to consider the requirement to notify a perpetrator, especially where the act of violence has not been reported to police or no charges have been laid, or the prosecution is discontinued or the person is acquitted. 

The supplementary terms of reference ask the Commission to expand its review to consider the operation and effectiveness of the VOCAA and the Victims of Crime Assistance Tribunal (VOCAT) for all crime victims. This was a significant expansion of the scope of the first terms of reference. 

A number of outcomes and objectives for any state-funded financial assistance scheme are identified in the supplementary terms of reference (reference objectives). The supplementary terms of reference ask the Commission at matter eight to consider whether any processes, procedures or requirements under the VOCAA cause unnecessary delay to the provision of assistance to victims of crime. In considering this question, the supplementary terms of reference ask the Commission to consider whether there are other models that would more effectively deliver assistance, for example an administrative or quasi-administrative model. Plainly, consideration of whether delay is ‘unnecessary’ involves reference to the whole of the VOCAA to identify provisions or procedures which might bear upon or cause delay, and reference to legislation or processes in other jurisdictions in which the outcome is more timely. The supplementary terms of reference also expand the initial terms of reference by asking whether ‘it is appropriate in certain circumstances (as is currently the case) for alleged perpetrators of a crime to be notified of applications to VOCAT or to be called to give evidence’. 

The Commission published a consultation paper on the first terms of reference in June 2017. A supplementary consultation paper on the further terms of reference was published in August 2017. The consultation papers were based on preliminary consultation meetings with key stakeholders, as well as the Commission’s own analysis of the current law and research. In response to both consultation papers 60 written submissions were received. Between August and November 2017 consultation meetings were conducted in Melbourne and throughout regional Victoria with key stakeholders, interested organisations and individuals including: the judiciary; victim support and advocacy organisations (government and non-government); family violence support and advocacy organisations; government departments; legal services and key academics, to examine the issues raised in the consultation papers, seek views on the questions posed and to test options for reform. 

The views expressed by stakeholders in consultation meetings and the written submissions received, as well as the Commission’s own further research, have informed development of the recommendations and the preparation of this report. The Commission warmly acknowledges these contributions to law reform. 

This report and the Commission’s conclusions address both the technical issues in relation to the existing Act and scheme, including in relation to the role of alleged perpetrators, and also the broader question of the appropriate model. The Commission has adopted a holistic approach to reform proposals, with victims’ needs at the centre of the Commission’s process and recommendations.  

Research, and the Commission’s findings, demonstrate that a victim-centred justice process is one that takes into account victims’ needs—for emotional support, information, practical support, including safety and security, financial assistance, and to be treated with dignity and respect throughout the justice process. 

The Commission’s recommendations aim to fulfil each of these needs. 

The Commission recognises that for some victims of crime, financial assistance may represent more than monetary assistance—it can serve to recognise their victimisation and validate their experiences, including the significant ongoing impacts. 

The Commission’s recommendations aim to ensure that a victim-centred financial assistance scheme does more than simply provide financial assistance. 

The Commission also acknowledges that state-funded financial assistance is only one aspect of the broader victims’ support landscape in Victoria. In particular, the Commission acknowledges the review currently being undertaken by the Sentencing Advisory Council (SAC) on restitution and compensation orders for victims of crime. As also acknowledged by SAC in its issues and options paper Restitution and Compensation Orders released in March 2018, the government will need to consider this report and SAC’s recommendations together to ensure a complementary approach to victim assistance, including state-funded financial assistance and other avenues such as restitution and compensation. 

The Commission’s conclusions are summarised below and its 100 recommendations are listed at pages xxix–xlvii. 

State-funded financial assistance 

After setting the context for this review in Chapters 1 and 2, this report in Chapter 3 outlines the history and purpose of state-funded financial assistance and discusses contemporary state-funded financial assistance schemes. 

Chapter 4 describes Victoria’s existing scheme as provided for under the VOCAA, including the operation of VOCAT, noting that the VOCAA and VOCAT are one component of a broader victims’ rights and support framework in Victoria. Chapter 4 also summarises a number of reviews and inquiries, and research relevant to the operation of VOCAT. 

Chapter 5 discusses key issues with Victoria’s existing scheme as identified to the Commission by stakeholders. These issues include eligibility, assistance available, time limits for making an application, timeliness of awards, decision making under the VOCAA, VOCAT hearings and evidentiary processes, in particular perpetrator notification and the right to appear provisions, and awareness and accessibility of the existing scheme. These issues reflect the matters identified in both the first and supplementary terms of reference. This discussion of key issues with the existing scheme provides the basis for the Commission’s consideration of the need for a new model of state-funded financial assistance for crime victims. 

Chapter 6 considers the current law in relation to alleged perpetrator notification and appearance provisions under the VOCAA and the effects of such provisions on victim safety and wellbeing. It notes that the significant effects are unlikely to be ameliorated through legislative or procedural protections. The Commission also considers that alleged perpetrators do not have a legal interest in the matter of state-funded financial assistance for victims of crime that needs to be met by matters of procedural fairness. This is because such a decision has no bearing on other legal matters. The Commission considers that an alleged perpetrator’s interest can be categorised, in the context of state-funded financial assistance, as a reputational interest rather than a legal interest. Accordingly, the Commission proposes that perpetrator notification and appearance provisions be removed, and that this reflects a trauma-informed approach that prioritises victims’ safety and wellbeing. 

The need for a new model 

Chapter 7 assesses victims’ needs and outlines stakeholder views on models of assistance. Chapter 7 also considers whether the existing court-based model as established by the VOCAA and VOCAT, and with the ability for alleged perpetrators to be notified and involved, is meeting the reference objectives. Chapter 7 concludes that the existing scheme is not meeting the reference objectives. In particular, the Commission finds that the current model is not victim-centred or beneficial in its approach because of its prioritisation of procedural and evidentiary processes over victims’ needs and the delays experienced by victims in accessing financial assistance quickly. The Commission determines that there is a need for a new model to more effectively deliver assistance to crime victims. 

Chapter 8 provides an overview of possible models—a reformed judicial model as submitted by VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria, and an administrative model. To guide discussion about possible models of assistance, Chapter 8 also outlines the importance of validation for victims of crime. 

Chapter 8 then assesses each possible model against the reference objectives having regard to stakeholder views and relevant research. The Commission acknowledges that VOCAT could be reformed and that a reformed VOCAT model as proposed by VOCAT, the Magistrates’ Court of Victoria and the Children’s Court of Victoria contains significant reforms and would likely result in improved assistance for victims, particularly if there were also technical reforms to the VOCAA. However, the Commission concludes that a reformed judicial model no longer represents a contemporary model that would most effectively deliver assistance to victims, especially in terms of timeliness, minimising trauma and reducing reliance on legal representation, and that it would also not be the most efficient or sustainable model for the state. 

In the Commission’s view, the most effective model to meet each of the reference objectives and to deliver Victoria’s state-funded financial assistance scheme is a new administrative model, focussed on assisting victims in their recovery from a criminal act, separate from Victoria’s criminal court system and any potential for involvement by the alleged perpetrator. Accordingly, the Commission recommends that a new state-funded financial assistance scheme be established, led by an independent and dedicated decision maker whose powers and functions are prescribed in legislation (proposed scheme), and that the VOCAA be repealed and replaced with a new Act (proposed Act) which establishes the proposed scheme and incorporates the legislative reforms recommended in this report. 

The Commission’s proposal for a new model of state-funded financial assistance represents a significant departure from the current model. In recommending this significant change, the Commission has strived to ensure victim needs are at the centre of its reform proposals. 

The proposed scheme places victims’ needs at the centre, providing for a beneficial approach that meets not only financial and practical needs, but prioritises victims’ safety and wellbeing and provides a forum for acknowledgment and recognition. Most significantly, the proposed scheme removes financial assistance from Victoria’s court system, thereby removing any need for victims to attend court, be called to give evidence and cross-examined, or be required to face an alleged perpetrator at a hearing. 

Chapter 9 outlines options for establishing an administrative scheme with an independent and dedicated decision maker. Having regard to Victoria’s existing victims’ support landscape, approaches in other Australian jurisdictions with administrative schemes, and stakeholder views on the essential characteristics of a scheme decision maker, the Commission recommends that the functions of Victoria’s Victims of Crime Commissioner be expanded to include the functions and powers necessary to administer the proposed Act and scheme. This approach will ensure that the proposed scheme does not create additional complexity by adding to the victims services and functions already available in Victoria. The Commission also recommends that the office of the Victims of Crime Commissioner be provided with appropriate funding and staffing and that the Victims of Crime Commissioner be supported by deputy decision makers and case managers, with the Victims of Crime Commissioner able to delegate some functions. 

Chapter 10 details key components of the proposed scheme. Having regard to Victoria’s existing scheme, approaches in other Australian jurisdictions with administrative schemes and stakeholder views, the Commission considers that the proposed scheme should also provide for non-pecuniary victim recognition. The Commission therefore recommends that the proposed Act should provide that all eligible victims are entitled to receive a recognition statement which, on behalf of the state, acknowledges the effect of the criminal act. The Commission also recommends that all eligible victims be entitled to request a victim conference with the scheme decision maker or deputy decision maker. Victim conferences would provide a respectful forum for victims to be acknowledged and heard. Victim conferences would not be for the purpose of determining any application or the amount of an award. As also discussed in Chapter 6, it is not recommended that the existing perpetrator notification and appearance provisions of the VOCAA be replicated in the proposed Act. Removing perpetrator notification reflects a trauma-informed approach that prioritises victims’ safety and wellbeing. 

Chapter 10 also discusses the need for case management and legal representation. Having regard to Victoria’s existing scheme, approaches in other Australian jurisdictions with administrative schemes and stakeholder views, the Commission considers that the proposed scheme should incorporate case management functions provided by scheme staff, and continue to enable victims to engage lawyers to assist with applications to the proposed scheme. The Commission considers that while case management should reduce reliance on lawyers, the proposed scheme should still enable victims to engage lawyers to ensure vulnerable victims or victims with complex needs are not disadvantaged. The Commission therefore recommends that case management be an essential component of the proposed scheme; that the scheme be able to award a lawyer the reasonable costs of a victim’s application for assistance; and that the proposed Act prevent lawyers from charging victims directly for costs in respect of a victim’s application for assistance. 

Chapter 10 also discusses whether restorative justice should form part of the proposed scheme and outlines the current restorative justice landscape in Victoria. Having regard to stakeholder views which highlighted concerns with integrating restorative justice within a state-funded financial assistance scheme, the Commission recommends that the proposed Act should provide that a scheme decision maker may, where requested by a victim, refer the victim to appropriate restorative justice initiatives. 

Chapter 10 also discusses specialisation, noting the current approach to specialisation within the existing scheme provided through the VOCAT Koori List. Having regard to stakeholder views on the existing approach to specialisation, the Commission considers that there is merit in a specialised approach in the proposed scheme and recommends that the proposed Act provide for the establishment of specialised case management and decision making. 

The proposed Act 

Chapter 11 discusses the purpose, objectives and principles of the proposed Act. The Commission considers stakeholder views on the current provisions of the VOCAA, along with the approaches taken in other jurisdictions. The Commission recommends that the purpose of the proposed Act should be to assist victims in their recovery from a criminal act. The Commission recommends that the proposed Act not include, as an objective, that only ‘certain victims’ be provided assistance as a symbolic expression by the state of the community’s sympathy. The Commission considers that such an objective can introduce subjective assessments of whether victims are ‘deserving’ victims. The Commission also considers that the VOCAA objective suggesting VOCAT be an option of last resort should not be included in the proposed Act. This is because such an objective may misrepresent state-funded financial assistance as an option of last resort, when for many victims it may be their only option; and additionally may lead to substantial delay in the provision of much-needed assistance should a victim be required to exhaust other options first. 

In summary, the Commission recommends that the proposed Act provide that the objectives of the Act are to recognise victims, assist victims in their recovery and complement other services provided to victims, and that the proposed Act include further guiding principles emphasising the importance of a beneficial approach that prioritises victims’ needs, safety and wellbeing. 

Chapters 12–16 discuss the technical and procedural issues with the VOCAA and VOCAT and how these issues are to be addressed under the proposed Act. 

Chapter 12 discusses the eligibility test and associated matters, including the definitions of victim, criminal act and injury, as well as proving injury and causation. In relation to the eligibility test, the Commission considers that victims should continue to be required to satisfy certain eligibility criteria. The Commission recommends that a person is eligible for financial assistance where the person is a victim of a criminal act and they suffer an injury as a result of that criminal act. However, the Commission also considers that the elements of the proposed eligibility test should be reformed to address stakeholder concerns. 

In relation to the definition of victim, the Commission notes stakeholder concerns that the victim categories create significant barriers for some victims. The Commission recommends that the existing victim categories be abolished and that the proposed Act include a single, comprehensive definition of victim, incorporating a range of victim experiences, to better recognise victim diversity and to not unfairly restrict certain victims from any amounts or types of assistance based on strict categories. The Commission further recommends a more inclusive definition of victim for those with a close personal relationship with a direct victim which better reflects contemporary community understandings of families and relationships. 

Chapter 12 also discusses the definition of criminal act and whether eligibility should be expanded to account for non-criminal acts, including non-criminal forms of family violence. 

While the Commission acknowledges the significant impact that non-criminal forms of violence may have on victims, the Commission nonetheless concludes that providing assistance to victims of non-criminal violence would be inconsistent with the purpose of state-funded financial assistance schemes for victims of crime, which aims to assist victims in their recovery from a criminal act. Accordingly, the Commission considers that a statefunded financial assistance scheme for victims of crime should reflect offences in the criminal law and that it is a matter for the Victorian Parliament to determine what type of conduct constitutes a criminal offence. 

However, to bring the proposed Act in line with changes to the law and community expectations, the Commission recommends that the range of criminal offences covered by the proposed scheme be expanded to include all sexual offences, certain serious property offences and a range of additional offences that occur in the context of family violence. The Commission also recommends that the proposed Act replace the term ‘act of violence’ with ‘criminal act’ to better reflect the range of offences recommended to be included in the proposed scheme. 

In relation to the definition of injury, the Commission notes stakeholder concerns that the definition of injury is too narrow and excludes some victims who have suffered a mental injury but are unable to establish a diagnosed mental illness or disorder. The Commission recommends that the definition of injury in the proposed Act not require a victim to demonstrate they have a mental illness or disorder. Under the proposed Act, injury would be defined as physical harm or psychological/psychiatric harm (or exacerbation of). Additionally, the Commission recommends that to address barriers in proving injury experienced by victims of sexual offences or family violence, and child victims who experience or are exposed to these forms of violence, such victims should not be required to prove injury under the proposed Act. The Commission also recommends that the causation requirement under the proposed Act be simplified to require that a victim has suffered an injury ‘as a result of’ a criminal act. Combined with the reforms to proof of injury, the Commission considers such reforms would make it easier for victims to access the proposed scheme. 

Chapter 13 discusses assistance available under the VOCAA and notes stakeholder concerns regarding both the existing structure and quantum of awards under the VOCAA. Having regard to stakeholder views and assistance available in other administrative schemes, the Commission recommends that the current categories of award be abolished and replaced with six ‘streams of assistance’—immediate needs, funeral expenses, counselling expenses, practical assistance, recovery payments and recovery plans and recognition. 

The Commission recommends immediate needs replace ‘interim awards’ to cover urgent needs such as urgent medical or safety expenses. To improve certainty for victims, these awards would not be required to be refunded, although victims would still need to meet the eligibility criteria of the proposed Act. The proposed Act would still provide for reasonable funeral expenses determined in line with guidelines. The Commission recommends that the proposed Act should provide for up to 20 counselling sessions and in exceptional circumstances, further counselling as determined by the proposed scheme decision maker according to publicly available guidelines. The Commission recommends that the ‘practical expenses’ stream include expenses such as medical, housing and safetyrelated expenses along with financial support. The Commission considers that this stream of assistance should address a victim’s basic needs which have been impacted by crime, and that all expenses must still meet a ‘reasonableness’ threshold. 

The Commission recommends the stream ‘recovery payments and plans’ replace the VOCAA awards of ‘recovery expenses’ and ‘special financial assistance’ to address stakeholder concerns that the existing categories exclude some victims. Under the proposed Act, the decision maker would determine the amount of a recovery payment according to a range of factors including whether the criminal act was directly perpetrated against the victim; the nature of the victim’s injury; the vulnerability of the victim and whether the alleged perpetrator was in a position of power, influence or trust; whether the criminal act occurred in the context of a pattern of abuse, such as family violence or child abuse; whether there were a series of related criminal acts, as well as the victim’s criminal behaviour where there is a nexus with the criminal act the subject of the application. Unlike under the VOCAA, these lump sum payments would no longer be provided as a symbolic expression of the state’s sympathy and condolence, but would be provided to further assist a victim in their recovery and provide victims with choice and control to direct some funds to certain expenses to aid their recovery which may not fall within other streams of assistance. 

As outlined above, the proposed Act would also include a range of recognition mechanisms, as provided for by the ‘recognition’ stream. The Commission recommends that the proposed Act provide that all eligible victims are entitled to receive a comprehensive statement of reasons for a decision and a recognition statement which, on behalf of the state, acknowledges the effect of the criminal act. The Commission also recommends that all eligible victims be entitled to request a victim conference with the scheme decision maker or deputy decision maker. Victim conferences would provide a respectful forum for victims to be acknowledged and heard.  

In response to stakeholder concerns that the current amounts of assistance are too low, the Commission recommends that the amounts of assistance be increased and subject to indexation and that there be no collective cap on assistance for multiple victims whose claims relate to the same criminal act. To promote scheme sustainability, the Commission recommends that the proposed Act require that expenses be reasonable and that where an applicant is the victim of ‘related criminal acts’ that these be treated as a single act for the purposes of making an award. While the Commission acknowledges that this may disproportionately disadvantage victims who experience multiple acts committed by a single offender, including victims of family violence, the Commission considers that other  aspects of the proposed scheme should mitigate the effects of this—for example, victims of related criminal acts would be eligible for a higher maximum recovery payment under the proposed Act. 

To address concerns with variation time limits and administration, the Commission recommends that victims be able to apply for additional financial assistance during a 10-year period from the date of their initial award and beyond the 10-year time limit for some additional health-related expenses according to guidelines. 

In Chapter 14, the Commission acknowledges stakeholder concerns about the current application form and recommends that all streams of assistance can be applied for using the same form and that the form accommodate varied victim experiences, including where there are multiple criminal acts or where the criminal act/s occurred in the context of a pattern of abuse. Having regard to stakeholder concerns that some victims may find it difficult to provide evidence of a criminal act, the Commission recommends that an applicant should be able to provide a broader range of documentary evidence to establish that they were the victim of a criminal act. The Commission also recommends that the evidentiary requirements for proof of injury should be broadened to enable a wider range of documentation to be submitted to prove injury. To further simplify the process for victims, the Commission recommends that the proposed scheme’s case managers should assist victims with the collection of documentary evidence. 

Chapter 14 also outlines the use of application materials in other proceedings and inspection and publication of application materials. Having regard to stakeholder concerns and approaches in other jurisdictions, the Commission recommends limits on the use of application materials in other proceedings and inspection of materials. Additionally, the Commission recommends restrictions on the publication of application materials. The Commission does not recommend restricting the publication of de-identified data or media or other public reports about the scheme which exclude information that is likely to lead to the identification of any individuals the subject of an application. 

Chapter 14 notes stakeholder concerns about the disadvantages experienced by some victim cohorts as a result of the two-year application time limit under the VOCAA. To address these concerns, the Commission recommends an increase of the time limit from two to three years for all victims, along with increasing the time limit further for some victims and abolishing the time limit entirely for others. Additionally, the proposed scheme decision maker would be able to consider applications made out-of-time, having regard to a range of expanded factors. 

In Chapter 15, the Commission discusses the current VOCAA factors resulting in refusal of awards, or the reduction of awards, including consideration of whether a victim has reported a matter to police, co-operated with police or prosecution and their broad character and behaviour ‘at any time’. The Commission concurs with stakeholder concerns that such factors result in subjective assessments of whether victims are innocent or deserving of assistance and recommends that the proposed Act not replicate the VOCAA provisions. The Commission recommends that the proposed decision maker limit consideration of an applicant’s behaviour to consideration of criminal behaviours with a nexus between the criminal act the subject of the application. The Commission also recommends that there be no mandatory requirement for a victim to make a report to police or to assist police or with prosecution. Instead, under the proposed Act, a police report may be used by an applicant to assist them to meet evidentiary requirements for scheme eligibility. 

In Chapter 15, the Commission also notes that while a transition to an administrative model would likely lead to improvements in overall timeliness of decision making, the Commission considers further safeguards should be incorporated into the proposed scheme’s design to ensure timely decision making. Accordingly, the Commission recommends that the scheme decision maker should be required to act expeditiously in the determination of applications and to support this, regulations should provide for time limits within which determinations for immediate assistance, funeral expenses, counselling and practical assistance should be made. Additionally, to address stakeholder concerns about a lack of transparency and consistency under the existing scheme, the Commission makes recommendations that the proposed Act require decision makers to provide written reasons for decisions, including decisions about accepting or rejecting applications, any factors taken into account in determining the amount of a recovery (lump sum) payment and reducing awards on the grounds that an applicant has received any other assistance from other sources. 

To improve accessibility of reviews of decisions, the Commission also recommends that the proposed Act first provide victims with an internal review option, followed by an external review to the Victorian Civil and Administrative Tribunal. The Commission also recommends the establishment of a separate complaints process. 

In Chapter 16, the Commission discusses the interaction of the proposed Act with other financial assistance schemes and the refund of awards. The Commission agrees with stakeholder views that there are issues of ambiguity and complexity in relation to VOCAA’s consideration of other assistance or payments. The Commission considers that under the proposed scheme, victims should be entitled to receive assistance from both the proposed scheme and other sources as long as they are not provided for the same purposes. This recognises the intersection with other schemes like the TAC and WorkSafe and that the legislative purpose of particular payments might differ. Having regard to certainty for victims, reducing complexity and encouraging timely decision making, the Commission recommends that the proposed Act require a decision maker to reduce the amount of assistance if a payment has been received through other means for the same purpose; or to reduce a payment on the basis that the victim will (on the balance of probabilities) receive a payment from another source for the same purpose. To support this, the Commission also recommends that the refund provisions in the proposed Act improve certainty and consistency for victims by only requiring that an award be refunded where the decision maker has considered the amount or type of the subsequent assistance received. The Commission notes that such consideration should provide the scheme decision maker with discretion, acknowledging that requiring victims to refund awards may cause financial hardship. 

Accessibility, sustainability and implementation 

Chapters 17–19 discuss issues of accessibility, sustainability and implementation. 

Chapter 17 discusses awareness and accessibility, including outlining the current estimate (approximately 9 per cent) of eligible victims who are accessing the existing scheme. The Commission considers that some issues of awareness and accessibility are likely to be addressed by the proposed model—an administrative scheme embedded within an independent agency whose mandate includes advocating for victims of crime. However, the Commission considers that a number of further initiatives are required to ensure improved awareness and accessibility of the proposed scheme, including community engagement and awareness raising and sector training and education. The Commission recommends that ongoing community engagement, public awareness and sector training and education activities regarding the proposed scheme be provided for by the proposed Act and that the proposed scheme be required to report annually on such activities. The Commission also recommends that the proposed scheme review and revise all forms and information so that they are in plain language and accessible formats. 

Chapter 18 discusses the potential costs and sustainability of the proposed scheme. It discusses demand and operating costs for the existing scheme, noting that demand for the proposed scheme is most likely to increase year on year, as it has for VOCAT. The Commission notes that it is difficult to project demand for the proposed scheme because of major justice reforms, the availability of other forms of financial assistance, fluctuations in awareness of the proposed scheme and any reduction in technical or legal barriers through legislative change to the VOCAA or through the introduction of the proposed Act. The Commission recommends that a comprehensive demand modelling project should be undertaken to assess current unmet demand under the existing scheme, and if relevant, anticipated demand under the proposed scheme. The Commission also notes that establishment and operating costs of the proposed scheme will require further consideration given the existing scheme’s salaries and operating expenditure are subsidised by the Magistrates’ Court of Victoria. 

Chapter 18 outlines factors and initiatives promoting sustainability of the proposed scheme, as considered throughout Parts Three and Four of the report. In addition, Chapter 18 discusses recovering money from convicted offenders. While acknowledging the current mechanisms for offender recovery under the VOCAA have not been used in practice, the Commission recommends the proposed Act enable a victim to assign their right to the state to recover monies. To support this provision and enhance its practical operation, the Commission recommends that the proposed scheme decision maker be required to advise victims of this right, and that the proposed scheme be provided funding and resourcing to pursue such recovery and enforce debts, so as not to divert resources from the provision of support to victims. 

Chapter 18 also discusses whether levies should be imposed on convicted offenders (‘victim levies’). The Commission discusses the operation of victim levies in other jurisdictions; the potential legal implications; the impact on impecunious offenders and enforcement costs. The Commission notes that the issue of victim levies has been a matter under consideration in Victoria since 2009. The Commission notes that while there may be some advantages to introducing victim levies, the matter of a victim levy should be addressed in its own right through a dedicated review, with regard to victims’ and stakeholder views, legal implications, operational experiences in other jurisdictions, cost benefit analysis and social implications. The Commission recommends that further consideration be given by government to the introduction of a victim levy. 

Chapter 19 discusses mechanisms for monitoring the operation of the proposed Act and scheme to ensure best practice. Noting stakeholder concerns about limited data collection and publication of data, the Commission recommends that the proposed Act require the scheme to publish and make publicly available data relating to all aspects of the scheme. The Commission also recommends that the proposed Act provide for a review of the operation and effectiveness of the Act and scheme not more than five years after its commencement. The Commission also recommends that transitional provisions be simpler and clearer for victims to understand and that all pending applications under the VOCAA be finalised under that Act and all new applications made on or after the commencement date of the proposed Act be determined under the proposed scheme.

Fake Credential Claims and Contract Cheating

A recent post in this blog noted the NSW ICAC unpacking of false claims by prominent Eman Sharaobeem about her credentials (not one but two non-existent PhDs), discussed in my article in Australian Health Law Bulletin.

Earlier in the year we saw a WA parliamentary committee unpack claims by WA member of parliament Barry Urban regarding his supposed entitlement to military honours and academic credentials.

SMH today reports that WA Police have charged Urban

 with 12 offences after an investigation by the Major Fraud Squad. ... The maximum sentence he is facing is seven years in prison. 

Darling Range MP Barry Urban quit parliament in May after a damning privileges committee report. 

Police said he had been charged with five counts of utter a forged document, one count of attempted fraud and one count of forge a record. 

He is also facing five counts of giving false evidence before a parliamentary committee. 

"The five counts of utter a forged document, and one count each of attempted fraud and forge a record relate to materials and information that the man allegedly provided during applications involving WA Police Force," WA Police spokeswoman Susan Usher said.

‘Just turn to us’: the persuasive features of contract cheating websites' by Susan Rowland, Christine Slade, Kai-Sheng Wong and Brooke Whiting in (2018) 43(4) Assessment and Evaluation in Higher Education 652-665 comments

Academic integrity is important to universities and students must abide by codes of academic conduct around assessment. Students are, however, subject to multiple pressures around assessment, some of which can push them to cheat. Modern contract cheating websites are the fronts for sophisticated, commercial operations that offer individually written assessment items for a fee; to combat their use we need a better understanding of the tools they use to persuade students to become customers. In this study we examined the persuasive features of 11 highly visible contract cheating websites and mapped these features to a previously used persuasiveness framework. We find that contract-cheating websites use a variety of credibility, interactive and informative features designed to persuade students to use their services. In addition, the sites offer low-cost, customisable products available in very short timeframes. We suggest ways in which educators can encourage academic integrity by talking with their students about how the websites promulgate their ‘just turn to us’ message.

The authors state

 Maintaining high standards of academic integrity through addressing student dishonesty in assessment is an important and long-standing tradition in universities. Recently, however, universities are discovering the difficulty of both detecting and policing the submission of assessment items bought from contract-cheating websites. Contract-cheating websites provide written work-for-purchase; student use of these sites is a global issue that is on the rise, with students across academic disciplines and academic levels in both online and face-to-face courses using services (Lancaster and Clarke 2014; Rogerson 2014). The extent of these practices is unknown, but an analysis of plagiarised text submitted to Turnitin in 2011–2012 suggests that contract cheating is widespread (Newton and Lang 2016). Students who use the sites ‘enjoy the anonymity of the Internet’ and its associated encrypted payment systems and cloud technologies; essentially, students can purchase ‘“ghosts” [who] take exams and quizzes, write papers, and complete entire classes’ (Fisher et al. 2016, 62). Clearly such a sophisticated system is both appealing to students and very hard for universities to regulate. 

This statement from Fisher et al. addresses a situation where students who use contract-cheating websites know that they are cheating and deliberately set out to cheat. In this study, however, we are interested in how a student might be persuaded to use a contract-cheating website to obtain assessable work. We take the stance that some students fall victim to the persuasive devices used by the sites and thus choose to purchase work they later submit for assessment. The purpose of this paper is to share insights from a small study at a large metropolitan university that examined the persuasive features and services offered by contract-cheating websites that are highly visible to Australian university students. We ask the questions. (1) What persuasive features are present on contract-cheating websites? (2) How do these features map to an established framework for website persuasiveness? (3) What other persuasive offerings are made to students who engage with contract-cheating websites? In addition, we consider how these features may influence students to use contract-cheating websites, and how we can use our understanding of the sites to help students avoid the pitfall of website-mediated cheating.

'The infernal business of contract cheating: understanding the business processes and models of academic custom writing sites' by Cath Ellis, Ian Michael Zucker, and David Randall in (2018) 14(1) International Journal for Educational Integrity 1 comments

.While there is growing awareness of the existence and activities of Academic Custom Writing websites, which form a small part of the contract cheating industry, how they work remains poorly understood. Very little research has been done on these sites, probably because it has been assumed that it is impossible to see behind their firewalls and password protection. We have found that, with some close scrutiny, it is indeed possible to find some ‘cracks’ in these sites through which we can look to gain insights into the business processes that operate within them. We have reverse engineered the business processes that operate within some of these sites. From this we have also been able to identify three different business models that are supported by these sites. Our analysis supports important findings about how these sites operate that can be used to inform future strategies to detect and deter contract cheating.

 The authors

 Contract cheating occurs when a student procures a third party (who knows about and benefits from the transaction) to produce academic work (that is usually, but not always assessable work) that the student then submits to an educational institution as if it were their own. It constitutes a form of plagiarism: presenting someone else’s words and/or ideas as your own without appropriate attribution. The contract can be either paid or unpaid; paid work obviously involves payment in money, but unpaid work could involve favours and other forms of mutual obligation (Lancaster and Clarke 2014a). While there is a widespread perception that contract cheating is a recent phenomenon, as Bertram Gallant points out in her history of academic misconduct, it is probably one of the oldest forms of cheating there is (Bertram Gallant 2008). The way that contract-cheating transactions occur, however, has changed over time. The most recent changes have been a result of emerging technologies that facilitate new ways to procure and produce bespoke academic work. 

It is likely that contract cheating is not well understood by many of the academic staff responsible for marking and administering student academic work in educational institutions. This is hardly surprising: contract cheating is, by its very nature, covert and duplicitous. Along side this low level of awareness, there are not, as yet, tools that can effectively and efficiently detect contract cheating at the point of submission. Most institutions will have had some experience of investigating and penalising students for contract cheating and in some instances these have been reported in the media (Jacks 2016). There is a growing concern across the Higher Education sector that the number of instances being detected is considerably smaller than the volume of work being procured, produced and submitted to institutions for assessment. Concomitantly, there is almost certainly a widespread perception amongst students who are currently or who are contemplating cheating in this way that the likelihood of their being caught and penalised is very small indeed. Rigby et al. make the important point that in the contract cheating market place ‘the demand for essays involves the interplay of risk, penalties and the payoffs and the ethics, norms and risk preferences of the individual facing the option to buy’ (Rigby et al. 2015 p23). A low risk of detection is, therefore, almost certainly an important influencing factor for at least some students. Macdonald and Carroll are at pains to point out that detection alone is not an adequate solution to the problem of academic misconduct (Macdonald and Carroll 2006). Detection, however, can contribute in useful ways to a holistic approach to deterrence and is therefore a critical part of the management of academic integrity in any educational institution. The premise of this paper is that in order to improve detection, it is first important to understand better how the business of contract cheating works. 

There are several ways in which contract cheating transactions take place. In his 2009 paper “Contract Cheating: A New Phenomenon in Cyber-Plagiarism” Mahmood divides the contract cheating problem into five segments: bespoke essay sites, using friends and family, discussion sites, tutorial sites and auction sites (Mahmood 2009). In their more recent paper, Newton and Lang also divide the problem into five sections that are slightly different to Mahmood’s: academic custom writing, online labour markets, pre-written essay banks, file-sharing sites and paid exam takers (Newton and Lang 2015). This paper suggests that neither of these views provide a fully comprehensive description of the different segments of contract cheating and that it is useful to combine them to identify instead six segments: family and friends; academic custom writing sites; legitimate learning sites (eg. file sharing, discussion and microtutoring sites); legitimate non-learning sites (eg. freelancing sites and online auction sites); paid exam takers; and pre-written essay banks. It is on the second of these segments – academic custom writing sites – that this paper focuses its attention. 

There is a growing body of scholarly work on contract cheating. To date the bulk of it has been undertaken by Clarke and Lancaster who have focussed their attention on the use of legitimate freelancing and auction sites for the purposes of contract cheating (see Clarke & Lancaster, 2006, 2007, 2013; Lancaster & Clarke, 2014a, 2014b). Wallace and Newtown have also investigated the speed of production of contract cheating procured and produced through these types of site (Wallace and Newton 2014). The scholarly work on academic custom writing sites has considered such things as the legality of the transactions (Newton and Lang 2015; Draper et al. 2017), the quality of work being produced (Lines 2016), the writers who produce the work (Bartlett 2009; Sivasubramaniam et al. 2016), the ability of markers to detect essays purchased from these sites (Dawson and Sutherland-Smith 2017) and the variety of features used by the sites to persuade students to use their services (Rowland et al. 2017). This paper offers some initial findings that have resulted from a close examination of a selection of sites associated with academic custom writing. 

This paper does not include any information that specifically identifies any of these sites in order to avoid promoting any individual companies (see Draper et al. 2017). Information relating to these sites has been made available to the reviewers and also to the Australian Tertiary Education Quality Standards Authority (TEQSA) and the Quality Assurance Agency (QAA) in the United Kingdom. The analysis is based on the examination of these sites in particular and this paper makes no claims that these findings represent the academic custom writing industry or the contract-cheating problem as a whole. The analysis does, however, offer a useful window into part of one segment of the industry.

Outreach, Distress and Hegemony

'Should You Bother Reaching Out? Performance Effects of Early Direct Outreach to Low-Performing Students' by David Siegel in (2017) 94(3) University of Detroit Mercy Law Review 427-438 asks

Do early alerts to students at-risk in a law school course affect their performance? Increased use of formative assessments throughout higher education, and now their required use in legal education, permits identification of students whose performance suggests they are at-risk early in a course. In legal education, formative assessments must “measure and improve student learning and provide meaningful feedback to students,” and recent research suggests individualized feedback to law students can improve students’ overall performance. Outside law schools, higher education has increasingly used early alert systems to identify and reach out to at-risk students, but their utility at improving performance is still in question. 

Beyond simply giving formative assessments with feedback, can faculty affect student performance by making individualized outreach with an early alert? I hypothesized that an early alert, through direct, personalized email outreach to low-performing students, followed by a one-on-one meeting, would improve their overall grade in the course as compared to that of students who did not receive the alert and were performing at similar levels at the same stage of the class. This paper reports the results of that experiment, conducted over two successive academic years. A quasi-experimental design was used that targeted students who performed in the lowest quintile on the first of five multiple-choice tests, with students who scored very slightly better on the first test as a control group. All students received elaborate feedback electronically within twenty-four to forty-eight hours. Performance effects were assessed by comparison of these two groups’ final course grades, which revealed no statistically significant difference between them. The implications for combining early alerts with formative assessments are discussed.

Siegel concludes

Does early, individualized, outreach to low-performing students affect their final grades? Based on two years of data from this small sample, there is no statistically significant difference between the final course grades of initially lowperforming students to whom outreach was made and those to whom it was not. Although the quiz performance paths of students who received the intervention and the control varied, there was no statistically significant difference between their final course grades in either year. 

There are several limitations to this study. First, test subjects were not randomly selected for the intervention. Second, these are very small data sets, and may well simply reflect a small numbers problem. Third, because the intervention and control groups were selected based on their performance on the first quiz, they may or may not have been representative of low-performing students in general (both groups’ average course grades were well below the class average). Fourth, the experiment compared outreach, not feedback, to students. Although the outreach involved individualized emails and, to some extent, conversation and review of each student’s quiz performance, the feedback was largely in the explanations to the multiple-choice questions, and my own discussion with the students. My feedback may simply not have been effective at correcting students’ misunderstanding or developing their knowledge. 

Should early alerts be continued? Other studies which have found no performance effect of early alerts suggest they may have other benefits. While it is difficult to imagine a negative impact of providing them, they may not merit increased use without more study of the effectiveness of different types of feedback once the early alert has made the connection with the low-performing student.

'Why Prescriptive Legal Education Demands Critical Perspectives' by Simon Rice in Kevin Lindgren, François Kunc and Michael Coper (eds), The Future Of Australian Legal Education: A Collection (Lawbook, 2018) 217-228 comments

The idea of private legal practice pervades law schools and legal education, determining content and method, reflecting what Professor Nussbaum has called ‘the subservient origins’ of legal education. The pervasiveness of private legal practice in legal education fails both to prepare students for the diversity of legal practice, and to serve the interests of justice. If law graduates are to be ready for the wide variety of places they may take their legal knowledge, and seek to do justice, the method of delivering the prescribe curriculum must break away from the implicit strictures of that narrow focus, and teach law in its larger social context, through explicit and extensive use of theory.

'Perceptions of psychological well-being in UK law academics' by J. Clare Wilson and Caroline Strevens in (2018) 52(3) The Law Teacher 335-349 comments

This study provides evidence that changing and increasing expectations of university, of students, and of academics of themselves have had an impact upon the perceptions of well-being in the law teachers who responded to this survey. A total of 185 UK law teachers completed a large survey which included demographic questions (age, academic qualifications, and experience), four questionnaires and a series of open-ended questions. Although most reported depression, anxiety and stress levels within the normal range, those who reported high stress levels were significantly more likely to report lower hope scores and higher obstruction of values scores as well as significantly less environmental mastery and self-acceptance. The results reported here indicate the importance of autonomy to law teachers. It is suggested that this is an issue that requires further investigation because of the potential for levels of psychological distress to increase.

The authors argue

Student mental health and well-being has become a growing concern in the UK, and, in particular, concern for law students was raised when Australian and American research demonstrated abnormally high stress levels in this group. Baron made a plea for Australian law schools to consider law academics. She suggested that “we need to start taking the well-being of law staff seriously if we are interested in the health and well-being of the legal profession more generally”. 

However, little research to date has explored the expectations of academic staff in dealing with stressed students or the implications for their own well-being. This paper argues that, if universities are to support students and academics, it is crucial to understand how staff understand and manage their own psychological well-being. 

Academic staff are a surprisingly under-researched group. A European survey by Teichler and Hohle indicated that British academics were the least satisfied with their jobs compared with their European counterparts despite being relatively highly paid (although well-being per se was not explored in this study). Kwiek and Antonowicz, reporting on this data, suggested that the marked and continual change in higher education across Europe over the last 20 years may help explain it. They cite the five drivers from Enders and de Weert as:

       massification of higher education, expansion of research, growing emphasis on the societal relevance of higher educational and research, globalisation and internationalisation and marketization policies and practices, and managerialism. 

The picture in the UK is most concerning: 61% senior and 56% junior academics in the UK see their job as a source of strain. 

In a report that covered only the UK, Kinman and Wray  reported that “On all but one of the Health and Safety Executive stressor categories, [respondents] in higher education reported lower well-being than the average for those working in the target group industries (including education)”. The changes in working context that impinge on academic well-being have been evaluated by Kinman8 and have led to a call for more research to inform implementation of strategic interventions for the sector. 

More recently a research report, published by Student Minds using a qualitative research methodology, looked at the role of academics in responding to student mental health issues. The report by Hughes, Panjwani, Tulcidas and Byrom, entitled “Student Mental Health: The Role and Experience of Academics” (herein The Student Mental Health Report) did not directly address the well-being of academics but made a number of recommendations to improve support for students and staff by, amongst others issues, clarification of the pastoral care role of the academic. 

For the purposes of the present paper, psychological well-being will be explored and will be taken to include general psychological well-being, living according to one’s values, hope, depression, anxiety and stress. 

First, one of the most robust models of psychological well-being was developed by Ryff in 1989. This model has been widely used and validated. This model has six factors.10 A questionnaire was developed to measure psychological well-being with the six factors represented by six subscales on the questionnaire. The first factor is autonomy, which explored self-determination (for example, a high score suggests that one is an independent thinker, whereas a low score may indicate more conformity to social situations). The second factor is environmental mastery, which explores the ability to manage environments according to one’s needs and values (for example, a high score may indicate a sense of mastery over opportunities and situations whereas a low score may indicate difficulty coping with daily demands and feeling out of control in relation to external demands). The third factor is personal growth, which is enjoying new experiences that are of challenge (e.g., a high score may indicate the participant enjoys learning and developing their self-knowledge whereas a low score suggests personal stagnation). The fourth factor is positive relations with others, which is enjoying connecting with other people (e.g., a high score may indicate warm and satisfying relationships with others whereas a low score may indicate isolation). The fifth factor is purpose in life, which focuses on having goals and plans for the future (a high scorer is likely to be very goal directed, and moving in a meaningful direction whereas a low scorer may lack a sense of direction). The final factor is self-acceptance, which focuses on liking the self (e.g., a high scorer can acknowledge both their good and bad qualities and feel good about themselves overall whereas a low scorer would rather be someone else). This model and scale has been widely used and validated. 

Second, an awareness of one’s values helps one maintain mental health. For example, Krieger argued that the pressures to succeed which occur at law schools tended to direct students away from positive personal (intrinsic) values and towards more external recognition, and rewards. This movement away from intrinsic values is strongly related to a loss of well-being and life satisfaction. Indeed, Deci and Ryan found that students who pursue extrinsic values such as image, money, and fame demonstrated poorer psychological well-being compared to those who pursue intrinsic values such as personal growth. This is due in part to pursuing (extrinsic) values that were beyond personal control. The present study explores values from the perspective of either progressing towards one’s values or feeling obstructed in achieving one’s values (that is, not making progress towards personal values) rather than in specific values per se. 

The third aspect is hope. Snyder, Irving and Anderson defined hope as “a positive motivational state that is based on an interactively derived sense of successful (a) agency (goal-directed energy) and (b) pathways (planning to meet goals)”. Hope can provide a model for understanding and explaining cognitive approaches to motivation and goal setting. Martin and Rand referring to Snyder and others note the following characteristics that tend to be found in people who have hope. First, hope has been shown to positively correlate “with self-esteem, perceived problem-solving abilities, perceptions of control, and positive affect”. 

Second, High-hope persons tend to experience better mental health. Third, people with hope have greater pain tolerance, and recover better from illness and injury. Fourth, hope has also correlated positively with social competence and social awareness. 

Fourth, the three main areas of mental health that relate to aversive experiences explored in the current paper are depression, anxiety and stress. The Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DSM-V) defines the category of Major Depressive Disorder as where the following symptoms are present more often than not over a prolonged period of time: fatigue, sleep disturbances, inability to concentrate, and physical restlessness, amongst others. However, generally the public defines any prolonged period of low mood as depression. 

Anxiety is often seen as excessive, uncontrollable worrying about aspects of life. It falls within a group of disorders defined in the DSM-V as: Anxiety Disorders; ObsessiveCompulsive and Related Disorders; and Trauma- and Stressor-Related Disorders. 

Stress (as opposed to anxiety) is usually defined as a specific reaction to an event (stressor) in the environment. For example, one may be anxious about the future and stressed about completing a grant application on time. Stress and anxiety can lead to social withdrawal, irritableness, fatigue and low self-esteem, as well as physical reactions, for example, an increased risk of heart disease and maladaptive behavioural responses such as increased smoking or drinking, or extreme weight loss or gain. In the workplace, “burnout” is considered to be a response to chronic stress. The scale used to explore these is the Depression, Anxiety and Stress Scale, which was designed to measure these three factors in non-clinical populations as well as use to screen clinical populations. 

All of these factors were explored together to get a broad understanding of overall well-being. Further, a number of open-ended questions were designed to ascertain the participants’ understanding of their own and their students’ well-being. Thus, the current research had three main objectives: first, to detail law teachers’ overall psychological well-being; second, to explore how they experience and maintain their own well-being; third, to explore how they may seek to maintain the psychological wellbeing of their students. Consequently the online survey consisted of five main sections: the Psychological Well-being Scale; the Depression, Anxiety and Stress Scale – DASS-21; the Valuing Questionnaire; the Adult Hope Scale; and the open-ended questions.

Essentialism

'Cultural Appropriation Without Cultural Essentialism?' by Erich Hatala Matthes in (2016) 42(2) Social Theory and Practice 343 comments

Cultural appropriation in the arts is a diverse and ubiquitous phenomenon. It might plausibly be thought to include occurrences as varied as 1) the representation of cultural practices or experiences by cultural “outsiders” (sometimes called “voice appropriation”); 2) the use of artistic styles distinctive of cultural groups by non-members; and, 3) the procurement or continued possession of cultural objects by non-members or culturally distant institutions. 

Cultural appropriation can often seem morally problematic. When the abstract schemas above are filled in with details from actual events, we often find misrepresentation, misuse, and theft of the stories, styles, and material heritage of people who have been historically dominated and remain socially marginalized. For example, consider representations of Native Americans in Hollywood Westerns, use of Navajo motifs in fashion and marketing, and the continued retention and display of Australian Aboriginal artwork by the British Museum. The actions of pop music artists such as Miley Cyrus and Iggy Azalea have also helped to usher the language of cultural appropriation into the popular lexicon. Yet cultural appropriation has received scant attention from philosophers. 

Moreover, there is a mismatch between the sentiments of some of the major philosophical writings on cultural appropriation and the concerns expressed by scholars and critics in other disciplines. James O. Young, the philosopher who has written most extensively on cultural appropriation, acknowledges that representations or uses of cultural stories and styles by outsiders is potentially offensive, but is doubtful about its harmfulness. Indeed, he writes: “I am deeply skeptical about the claim that artists will do much harm to the cultures from which they borrow,” and he is similarly skeptical about the extent and frequency of those harms that he does acknowledge can befall cultural members. His monograph is, by design, largely a moral and aesthetic defense of cultural appropriation. In contrast, writers outside the discipline of philosophy have expressed much more concern about the harmfulness of cultural appropriation, particularly with respect to its power to oppress and silence, though explanation of the mechanisms by which appropriation causes these harms is not always fully developed. 

Consequently, my first task in this paper is an intervention in the philosophical literature on cultural appropriation. I aim to take seriously the claim that cultural appropriation can be harmful, and objectionably so. Indeed, I believe that philosophers have developed powerful conceptual resources that can be employed to bolster our understanding of the mechanisms by which cultural appropriation can cause harm by oppressing and silencing. I demonstrate this by bringing the literature on cultural appropriation into dialogue with recent philosophical work on harmful speech and epistemic injustice. Despite the fact that artistic expression is widely regarded as a form of speech, almost no one (to my knowledge) has considered how the harms of cultural appropriation might be illuminated by reference to philosophers’ work on dominating speech. One of the key insights of that literature concerns the relationship between harmful speech and systems of oppression and marginalization, and I employ this observation in order to argue that cultural appropriation is just one way, among others, in which social marginalization can interact with speech in order to cause harm. Thus, on my account, cultural appropriation has some descriptively unique features, but does not issue in a unique kind of harm. 

My second task in this paper is to consider a problem that nevertheless faces moral objections to cultural appropriation. These objections are predicated on making a distinction between cultural “insiders” and “outsiders,” or “members” and “non-members.” However, as a range of scholars has pointed out, such distinctions have the potential to fall prey to a harmful cultural essentialism. Roughly, because essentialist theses about culture are false, practices of distinguishing cultural insiders from outsiders on the basis of such theses are prone to be harmfully exclusionary. Moreover, with my account of appropriative harms in place, we can see that the harms of cultural essentialism are eerily similar to the harms of cultural appropriation. Thus, persons who make claims objecting to cultural appropriation predicated on essentialist distinctions between insiders and outsiders risk causing harms of a similar kind to the appropriations to which they are objecting. A few scholars have noted this problem in the context of cultural appropriation, but I argue that none have identified an adequate solution. In response, I argue that the account of appropriative harms that I present here, informed by work on the systematic nature of dominating speech, has the resources to explain many of the general harms of cultural appropriation while eschewing the identification of cultural outsiders in individual cases. Thus, the account not only bolsters our understanding of how cultural appropriation can cause harm, but, moreover, may provide the resources to lodge objections to cultural appropriation without exacerbating the harms of essentialism. 

This move, however, is not without dangers of its own. Though it allows us to avoid charges of cultural essentialism, jettisoning the practice of distinguishing insiders from outsiders in individual cases may sometimes vitiate objections to acts of cultural appropriation, leaving us without the resources to adequately explain the nature of the wrong in question.  Thus, in such cases, the risks of essentialism must be weighed against the importance of lodging the most complete and fitting objection to the harmful act.

Health Qualifications

Chapter 10 of the ICAC report noted in the preceding post deals with Ms Sharobeem's qualifications, of interest regarding vetting, identity offences and the national Health Practitioner Regulation Law regime (and an echo of the Zepinic fraud noted here and here).

This chapter examines whether Eman Sharobeem falsely claimed to be a qualified psychologist holding two PhDs and a masters degree and whether she treated clients of the Immigrant Women’s Health Service (IWHS) as a psychologist. 

Ms Sharobeem’s educational qualifications 

Ms Sharobeem told the Commission that, in 1984 or 1985, she obtained a degree in commerce/accounting and business administration from Ain Shams University, in Cairo, Egypt. The Commission made enquiries with Ain Shams University and was advised that its records indicated that Ms Sharobeem had been awarded a bachelor of arts in business.  

Ms Sharobeem told the Commission that she did not complete any tertiary education in Australia, except for a TAFE office management course. She never obtained a masters or a doctorate degree by undertaking a course of studies at any educational institution. She said that, in about 2002, however, she received an honorary PhD from the American University in Cairo (“the American University”) for her work and research relating to “women and girls, microfinance and management”. 

Ms Sharobeem said that came about when she was working as a general manager for the External Relations Department at the National Council for Women (NCW) in Egypt. She was informed by a professor from the American University, that it was “planning” to award her an honorary PhD. She was not told whether it was a PhD in psychology or another discipline. One of the staff in the NCW human resources department called her sometime later to congratulate her on receiving an honorary degree, and issued her with a business card showing her as having a PhD. From that point on, she was addressed and known as “Dr Eman Sharobeem”. She said the Arab League had also issued her with a card describing her as a doctor. 

Ms Sharobeem told the Commission that she did not receive a degree certificate or any other documentation evidencing the awarding of an honorary degree by the American University. She said that there was a document that proved the honorary degree was conferred on her, but it must have been burnt during the Arab Spring in 2011 when the NCW building was set on fire. All her attempts to locate a copy had been unsuccessful. 

The Commission made enquiries with the American University in Egypt. It advised that there was no record of any degree, honorary or otherwise, ever having been awarded to Ms Sharobeem by that institution. The Commission accepts that evidence. In doing so, the Commission takes into account that it is extremely unlikely that the recipient of an honorary degree from a university would not be given any documentation such as a degree certificate or at least an official letter of confirmation, evidencing that the degree had been conferred on that individual. 

The Commission is satisfied that Ms Sharobeem was never awarded an honorary degree from the American University. 

Ms Sharobeem’s representation of academic qualifications 

Ms Sharobeem denied falsely identifying herself as Dr Sharobeem or misrepresenting herself as having a PhD in psychology. She maintained that she was entitled to call herself a doctor by virtue of her honorary doctorate, and denied having provided IWHS with a curriculum vitae (CV) containing false academic qualifications. 

There was no reference to Ms Sharobeem having an honorary doctorate in the letter and CV she submitted in 2004  as part of her application for a job at IWHS. If she really believed, at that time, that she had an honorary degree it is most likely that she would have included it in her CV in order to enhance her prospects of gaining employment with IWHS. However, her IWHS staff file did contain another CV, dated 4 December 2006. The 2006 CV identified her as “Dr Eman Sharobeem” and stated that she obtained a PhD with a thesis major in psychology and minor in community management, and a masters in community management, both from the American University. The 2006 CV also stated that she also held a diploma in management of community organisations from the University of Technology, Sydney (UTS). Ms Sharobeem admitted to the Commission she did not hold any of the qualifications identified in the 2006 CV. Although she had commenced a UTS diploma course in community organisation, she never completed the course. She also conceded that she never wrote a thesis on psychology. She claimed to have written a thesis on community management at UTS, but said that she no longer had a copy. 

Ms Sharobeem told the Commission that the 2006 CV was created by her on her home computer and was “wishful play”, “wishful thinking”, and an attempt to “understand how to phrase the honorary degree in simple terms”. Although she accepted that the information in the 2006 CV concerning her academic qualifications was incorrect, she denied that the 2006 CV was a false document. That denial reflects her lack of credibility as a witness. 

Ms Sharobeem told the Commission that she did not submit the 2006 CV to IWHS, and therefore its location in her IWHS personnel file must have been the result of someone “fabricating” it to be used against her. It is inherently implausible that anyone could have obtained the 2006 CV that Ms Sharobeem herself created on her home computer, then arrange for it to be included in her IWHS personnel file for the purpose of it potentially being used against her one day. The Commission rejects Ms Sharobeem’s explanation, and is satisfied that she was responsible for placing the 2006 CV on her IWHS staff file knowing that it contained false information concerning her qualifications. 

Representation as a qualified psychologist at IWHS 

Ms Sharobeem admitted to the Commission that she was not a trained psychologist and had never been registered as a psychologist. She denied she falsely held herself out as a qualified practising psychologist to the IWHS board, staff, clients and the community in general. 

A number of witnesses told the Commission that they were led by Ms Sharobeem to believe she was a qualified psychologist. 

Watfa El-Baf, an administrative officer at IWHS, gave evidence that Ms Sharobeem told IWHS staff that she was a psychologist. Another IWHS administrative officer, Marie Abboud, told the Commission that, in about 2004, when Ms Sharobeem first started working as the IWHS manager, she called herself “Mrs Eman Sharobeem”. However, from about 2008 or 2009, she started calling herself a doctor and signed documents as “Dr Sharobeem”. Ms Abboud recalled that, in about 2009, Ms Sharobeem told her that she had studied psychology. 

Sok Luong Chan, who was the project coordinator of IWHS’s Cabramatta office, told the Commission that, at some point in time, Ms Sharobeem told her she had obtained a PhD and subsequently became a psychologist. 

Audrey Lai, an IWHS board member, gave evidence that Ms Sharobeem had told her that she was a qualified psychologist; although, she “did not renew her registration with the Psychology Board as she was not charging people”. 

Svetlana Maric, who became a board member for IWHS in 2005 and later became a caseworker at NESH, also gave evidence that Ms Sharobeem told her she was a psychologist. 

Julie Watton, who was a board member of IWHS and Non-English Speaking Housing Women’s Scheme Inc (NESH), gave evidence that Ms Sharobeem had talked to her about finishing a degree, which she may have said was in psychology, and sometime later she started calling herself “Dr Sharobeem”. Ms Watton told the Commission that her recollection of her previous conversation with Ms Sharobeem, and Ms Sharobeem’s change of title, led her to believe that Ms Sharobeem had obtained a degree and become a doctor of psychology. 

There were a number of documents in evidence before the Commission that Ms Sharobeem had signed as “Dr Sharobeem”. 

Despite this evidence, Ms Sharobeem maintained that she did not represent herself to IWHS staff or board members as a qualified psychologist. She claimed that, at one point, she corrected Ms El-Baf ’s misunderstanding that she was a psychologist. She also suggested that NESH project coordinator Nevine Ghaly had planned to frame and defame her, and had, for that purpose, influenced Ms El-Baf and Ms Abboud to believe what Ms Ghaly wanted them to believe. 

The Commission rejects Ms Sharobeem’s evidence and accepts the evidence of the other witnesses on this issue. The consistent and corroborative testimony of the   six witnesses is more persuasive than Ms Sharobeem’s unsupported denial. It is inherently unlikely that all six witnesses were lying or mistaken when they gave their evidence to the Commission. In accepting their evidence, the Commission also takes into account the objective evidence that Ms Sharobeem signed IWHS documents as Dr Sharobeem and the other evidence, set out below, that she misrepresented herself to others as being a psychologist. 

The Commission is satisfied that Ms Sharobeem intentionally made false representations to IWHS staff and board members that she was a qualified psychologist. 

Representation as a qualified psychologist at other agencies 

Ms Sharobeem denied that she falsely represented to various agencies that she was a qualified psychologist with a PhD in psychology. 

There was documentary evidence before the Commission showing that Ms Sharobeem falsely represented herself as a psychologist with a doctorate in psychology to various agencies. The following are some examples of those documents and Ms Sharobeem’s explanations. Ms Sharobeem sent emails as follows:

• 30 May 2005 to a TAFE officer 

• 14 December 2006 to officers at the NSW Department of Education, TAFE and Sydney South West Area Health Service 

• 30 January 2007 to an officer at the NSW Department of Education and Training 

• 30 January 2007 to the Smith Family 

• 10 August 2007 to the Western Sydney Regional Organisation of Councils. 

All of these emails attached her CV, which stated that she held degrees, including a PhD in psychology, a masters in community management, and a diploma in management or community management. There were slight variations in detail in each CV. 

Ms Sharobeem admitted that the educational qualifications set out in the CVs were wrong, but claimed they were unintentional mistakes. She denied that she sent out the CVs knowing they contained false information about her academic qualifications, in order to give the recipients the false impression that she was a trained psychologist. 

The Commission rejects her denial. It is implausible that over a period of more than two years, she would mistakenly send emails to various recipients attaching various CVs, all with false academic qualifications. 

On 7 June 2006, Ms Sharobeem sent an email to the Coptic Orthodox Church attaching minutes of a meeting dated 16 May 2006. She told the Commission that she had proofread the minutes, which she said were an English translation of what was discussed at the meeting in Arabic. The minutes recorded that she introduced herself as Dr Sharobeem with a PhD in psychology. Ms Sharobeem told the Commission that she was suggesting at the meeting that she was a person who had a PhD, and not that she was a trained psychologist. 

On 27 May 2015, Ms Sharobeem received a text message in which the sender asked her: “To put the correct credits and names at the end of the DVD, we need to confirm that you have a (PhD) in psychology”. Ms Sharobeem responded with a text message on the same day saying, “Yes I do”. Those three words constituted the entire text of her message. When giving evidence to the Commission, Ms Sharobeem disagreed that her response was confirmation that she had a doctorate in psychology. She claimed her response was meant to refer to the honorary degree she claimed to have received from the American University. 

There is no merit to Ms Sharobeem’s claim that it was not her intention to portray herself as a psychologist, rather than someone with an honorary degree in psychology. The Commission has found that Ms Sharobeem did not have an honorary PhD. In any event, she conceded that she never clarified to anyone, either in her official capacity as IWHS manager or outside work, that her status as a doctor was based on an honorary degree and not on completion of postgraduate university studies in psychology. 

The Commission is satisfied that Ms Sharobeem knowingly made false representations to government and other agencies that she was a qualified psychologist with a PhD in psychology. 

Representations to the media 

The Commission also investigated whether Ms Sharobeem held herself out as a qualified psychologist to the public through the media. She denied having done so and claimed she only made herself known in the general community as the holder of an honorary doctorate. 

In evidence before the Commission were two radio interviews conducted with Ms Sharobeem. One was an interview on 29 July 2012 on ABC Radio National with Rachel Kohn. The other was an interview on 7 December 2014 on the Sunday Profile program with Richard Aedy. In both interviews, Ms Sharobeem talked about her studies in psychology, obtaining two degrees, a graduation ceremony at the completion of her studies and being a doctor in psychology. During the Sunday Profile interview, the following conversation took place:  

[Mr Aedy]: You are a psychologist yourself? 

[Ms Sharobeem]: I am. 

[Mr Aedy]: Do you see clients? 

[Ms Sharobeem]:  I do. That’s the best time of my day when I interact with the client one-on-one and see the client growing with me to a better and safe place.

A number of witnesses gave evidence that Ms Sharobeem saw patients in the capacity of a psychologist. 

Ms Abboud told the Commission that she gave out Ms Sharobeem’s business cards, in which she was described as “Dr Eman Sharobeem”, to people asking to see a psychologist, and made appointments for them to see Ms Sharobeem as a psychologist. Ms Abboud said that a number of people on IWHS client lists saw Ms Sharobeem as a psychologist; some on a regular basis. 

Ms El-Baf told the Commission that people from Centrelink, church, police and counsellors, called for or were referred to Ms Sharobeem as a psychologist. 

Ms Chan recalled receiving telephone calls at IWHS’s Cabramatta office from people asking for an appointment to see a psychologist or a counsellor. She contacted IWHS’s Fairfield office to find out if such an appointment could be made and, if so, the identity of the psychologist or counsellor. She was told such appointments could be made and that Ms Sharobeem was the psychologist/ counsellor. Although no distinction appears to have been made in this instance, between a psychologist and a counsellor, Ms Chan’s evidence is consistent with the evidence of Ms Abboud and Ms El-Baf, that there was an understanding within IWHS that Ms Sharobeem was a psychologist. 

Jihan Hana, an IWHS facilitator, told the Commission that she always knew Ms Sharobeem as Dr Sharobeem, believed her to be a doctor in psychology, and even received counselling from her herself for a brief period. In the counselling sessions, Ms Sharobeem referred to herself as a psychologist. 

Reda Shehata, a volunteer at NESH and a friend of Ms Sharobeem, told the Commission that she knew Ms Sharobeem as Dr Sharobeem, and believed her to be a practising psychologist from IWHS. She also said there was someone known to her who saw Ms Sharobeem as a psychologist for a couple of months. 

Ms Maric gave evidence that IWHS provided psychological counselling to people. During her time at NESH in 2013 and 2014, she was aware of some clients being referred by NESH to IWHS for psychological counselling. She understood that Ms Sharobeem was the only psychologist employed at IWHS. 

In her evidence to the Commission, Ms Lai said that she referred clients from Centrelink to Ms Sharobeem in the belief that she was a trained psychologist. 

There was documentary evidence that showed that Ms Sharobeem saw a significant number of IWHS clients as patients, including those referred to her by medical practitioners. She also provided official letters to government and community organisations about individuals she saw, in which she made diagnoses of mental health conditions of the kind that would normally be made by a qualified psychologist. One of the documents was titled “Dr. Eman Sharobeem Client Details”. It listed numerous names of persons, their contact details and appointment dates and times. Ms Sharobeem agreed that it was a list of clients she saw. Although she claimed she only saw them in the capacity of a caseworker or IWHS manager, not as a psychologist, the document title is indicative of her holding herself out as a qualified doctor. 

During the public inquiry, Ms Sharobeem was shown a number of mobile telephone text messages of various dates she sent or received, which related to requests from people to see a psychologist and arrangements made for her to see them. One example was a text message to her dated 5 February 2015. The sender commenced the message with “Hi doctor, my name is ...”, reflecting the sender’s belief that Ms Sharobeem was a doctor. A text message dated 12 October 2015 said, “Hi dr. Eman ... I have a marital separation issue. R u working as a psychologist regarding this issues ??”. Ms Sharobeem replied to that text message on the same day, “Yes, but have very long waiting list”. It is particularly clear from that response that she was holding herself out as a psychologist who was able to provide advice. During the public inquiry, Ms Sharobeem was also referred to a Viber text message, dated 9 April 2015, in which she said, “My apologies, I had patients with me. Will call soon”. 

Ms Sharobeem denied that what she said at the interviews about being a qualified psychologist was a lie. She said her comments were a “misrepresentation of what I wanted to say”. She initially sought to justify her false statements by claiming to have completed certificates in psychology after doing short courses, although not from a university and despite not being able to recall the first subject she studied. She eventually admitted that the representations she made in the interviews were “absolutely wrong” and misleading, however claimed she did not mean to mislead anyone. 

During the public inquiry the Commission also played a video recording of SBS’s Insight program, episode 15 from 2012, which was on the topic of polygamy. Ms Sharobeem appeared in that program and told the host of the show and the audience in the studio that she was a psychologist. At the Commission, she admitted “that was [the] wrong interpretation of who I was”. 

The Commission is satisfied that Ms Sharobeem publicly promoted herself during media appearances on radio and television as a trained psychologist, who had completed studies and obtained degrees in psychology. 

Did Ms Sharobeem treat IWHS clients? 

The Commission also examined whether Ms Sharobeem pretended to be a psychologist when treating IWHS clients. 

Ms Sharobeem told the Commission that she told IWHS clients that “I’m a doctor in psychology” but that was a “brief ” way of really telling them she had an honorary degree. She claimed that she mostly communicated with clients in Arabic and that saying in Arabic that she was a doctor in psychology “gives more meaning than the word in English”. 

Ms Sharobeem admitted that she was not qualified to treat patients as a psychologist and was never registered as one. She denied ever treating anyone as a psychologist. She told the Commission that she only provided clients with counselling when needed, and referred them on to qualified psychologists where required.  

The Commission is satisfied that the consistent and corroborative testimony of the witnesses referred to above, the documentary evidence and evidence of the text messages shows that she did hold herself out to IWHS clients as a psychologist and that she saw patients in that capacity. 

Did Ms Sharobeem receive referrals as a psychologist? 

In her evidence to the Commission, Ms Sharobeem accepted that doctors may have believed she was a qualified psychologist but maintained that she did not psychologically treat any patients referred to her by doctors or make psychological diagnoses. She claimed that she only conducted assessments of those people, and then referred all the cases to a psychologist. 

At the public inquiry, Ms Sharobeem was shown referrals of patients by doctors dated 23 November 2009, 29 December 2009, 9 June 2010 and 3 February 2014, all of which thanked Ms Sharobeem for seeing the patients referred. Ms Sharobeem admitted she saw the patients, but insisted that she was never involved in treating them. 

She claimed that she just “managed” their cases, by talking to them to determine whether they needed to see a psychologist or required another form of assistance. She also told the Commission that many Arabic-speaking people came to see her, because she was well-known within the Arabic community, as “a woman who is wise and know[s] how to deal with” people under pressure from issues relating to racism, bullying, education, family issues, cultural transition and religious conflict. 

Ms Sharobeem was shown the following documents:

• An “Enhanced Primary Care Program Referral Form for Allied Health Services under Medicare” dated 7 May 2009 in which Ms Sharobeem was named as the “servicing allied health professional”. Ms Sharobeem said she did not remember the document. 

• A letter dated 22 July 2009 to the University of Western Sydney in which the writer was identified as “Dr Eman Sharobeem, Psychologist, Service Manager”. The letter referred to the “psychological status” of the client as being “assessed” and also referred to “psychological analysis”, “counselling” and “treatment process” for the client. The letter outlined three months of ongoing psychological treatment. Ms Sharobeem said she did not know the client, and sought to cast doubt as to whether she was, in fact, the author of the letter. 

• A letter dated 18 December 2009 to the NSW Department of Housing in which the writer was identified as “Dr Eman Sharobeem, Psychologist, Service Manager”. The letter referred to a psychological analysis of the client in question and treatment for depression and anxiety over six months. Ms Sharobeem said “psychologist” was “wrongly written” in the letter. She attempted to dissociate herself from the letter by claiming that she did not have a definite recollection of writing it, but if she did write it, she probably used the wording of the psychological diagnosis made by the psychologist involved in the case. There is, however, no reference to any other psychologist in the letter. 

• A letter dated 29 January 2010 to the Parramatta office of the NSW Department of Immigration and Citizenship in support of an application for a protection visa, in which the writer was identified as “Dr Eman Sharobeem, Manager”. The letter concerned a female victim of domestic violence. The letter stated that the person’s “psychological status was assessed and certain levels of stress and anxiety were identified, as a result of suppressed personal issues and violence”.  Ms Sharobeem agreed that she assessed the person and identified the person as suffering from stress and anxiety. She said that, although she was not a qualified psychologist, stress and anxiety were easy to detect. 

• A letter dated 20 November 2010 to the Tribunal of the Catholic Church in which the writer was identified as “Dr Eman Sharobeem”. The letter stated that the person referred to in the letter presented with “stress, anxiety and depression symptoms”. Ms Sharobeem claimed the person came to see her after having been previously psychologically assessed as suffering from those symptoms, and she merely acknowledged in the letter what she was told by the person. 

• A letter dated 17 September 2011 to a caseworker at the Australian Red Cross, in which the writer was identified as “Dr Eman Sharobeem, Service Manager, Psychologist”. The letter confirmed that the person in question had suffered from the effects of torture and trauma and was therefore unfit to work. Ms Sharobeem told the Commission the word “psychologist” should not have been used. She claimed that she expressed her opinion as a caseworker, not a psychologist. 

• A GP Mental Health Treatment Plan dated 5 February 2014 by a referring general practitioner, which included a history of the patient’s mental health diagnoses, and identified Ms Sharobeem as a psychologist and a mental health professional involved in the patient’s care. Ms Sharobeem accepted that she had no experience in diagnosing psychotic disorders, but denied having done so. She said she may have talked with the client in this case, who was Egyptian, “briefly about the culture at home”, and claimed the client then saw a qualified psychologist.

Ms Sharobeem sought to distance herself from direct responsibility for the letters by raising the possibility that she had signed and sent letters out without checking their contents were correct. The Commission rejects that evidence. 

All of the above documents were associated with issues relating to mental health. Ms Sharobeem frequently purported to be a doctor and a psychologist in her correspondence when she was neither, expressed views of a medical nature, and made diagnoses. Ms Sharobeem took no steps to correct documents in which she was incorrectly identified as a psychologist by medical practitioners. She did not qualify her status in any of the relevant documents by explaining that she was a counsellor providing services as a caseworker only and not as a psychologist. 

The Commission is satisfied that Ms Sharobeem held herself out as a qualified psychologist, and practiced as such, without any formal qualifications or training. Her conduct involved her accepting referrals from health professionals and other community organisations, making psychological diagnoses, and treating people as patients in the capacity of a psychologist. 

Parolee X 

There was evidence that a parolee (“Mr X”), whose name is subject to a non-publication direction under s 112 of the Independent Commission Against Corruption Act 1988 (“the ICAC Act”), came to see Ms Sharobeem in 2011 after obtaining a referral from a general practitioner to see a psychologist. 

Ms Sharobeem told the Commission that Mr X was a young man whose family was well-known to her, and trusted her to care for and help him. She denied providing him with psychological care or treatment, or representing herself to anyone as his treating psychologist. She claimed that, after she saw Mr X, she made an appointment for him to see a psychologist, whose details however she was unable to provide to the Commission.  

Department of Corrective Services (DCS) records identified Ms Sharobeem as Mr X’s psychologist. His DCS breach of parole report, dated 6 July 2011, stated that Mr X “scheduled an appointment with a psychologist on 7 July 2011” and also referred to “Contact with [Mr X’s] treating psychologist on 8 July 2011”. Ms Sharobeem did not deny that she was seeing Mr X at that time, but maintained that she did not provide psychological treatment to him but merely offered him counselling. 

In a further breach of parole report of 15 August 2011, Ms Sharobeem was referred to several times as “the offender’s treating psychologist” or “the offender’s psychologist”. There was a note by DCS staff that “Contact with the offender’s treating psychologist on 10 August 2011 confirmed the offender has continued attending weekly psychological and gambling counselling. [Mr X’s] psychologist stated that she continues to work closely with both the offender and his family...”. 

Ms Sharobeem told the Commission that she did not recall having a conversation with the report writer about working closely with Mr X in relation to his problems. She said that she had worked with Mr X and his family. She claimed not to remember telling anyone from DCS that she was a psychologist, although she did recall receiving calls from DCS about Mr X, and suggested that Mr X may have told the DCS officers that she was his treating psychologist. 

The Commission rejects Ms Sharobeem’s evidence that she did not tell DCS officers she was Mr X’s psychologist. The Commission also rejects the possibility that it may have been Mr X, and not Ms Sharobeem, who told the DCS officers that she was his treating psychologist, and that the DCS officers mistook her as such when communicating with her about Mr X. That is because the relevant DCS records demonstrate Ms Sharobeem was providing information about Mr X to the DCS officers in the capacity of a psychologist treating Mr X, and not just as someone offering Mr X counselling and support as she claimed. 

For example, it is stated in the DCS case note report dated 20 July 2011 that “Dr Eman Sharobeem” advised that she will “continue to counsel offender weekly but unsure if this is the most appropriate treatment for offender”. It is not clear whether by “treatment” she was referring to her weekly counselling sessions or the rehabilitation program that was being considered for Mr X at the time. In any event, it is clear that she was expressing an opinion on the appropriateness or otherwise of a treatment for Mr X. A further case note report dated 1 September 2011 recorded that, “Dr Sharobeem (offender’s psychologist) ... stated she would no longer be offering psychological counselling or gambling counselling to the offender”. By the express use of the words “psychological counselling”, the DCS officers would reasonably assume that Ms Sharobeem was providing Mr X with not just support counselling but counselling as a psychologist. 

There is nothing to suggest in the DCS documents that any doubt had ever been raised in the minds of the DCS officers as to whether or not Ms Sharobeem was, in fact, Mr X’s treating psychologist or that, when she was contacted by them in relation to Mr X, she communicated to any of them that she was not Mr X’s psychologist. 

It is unlikely that DCS officers would have identified Ms Sharobeem in DCS records as being Mr X’s treating psychologist, and made references in their breach of parole reports and case notes to Ms Sharobeem having that role, if she never told them or confirmed to them that she was Mr X’s psychologist. 

That Ms Sharobeem represented herself to DCS as a qualified psychologist is consistent with her history of falsely representing herself as a qualified psychologist to others over a period of years. The Commission is satisfied that Ms Sharobeem falsely represented herself to DCS officers to be Mr X’s treating psychologist and that she saw Mr X in that capacity. 

Further remarks 

From the evidence available to the Commission, it is not possible to establish with certainty exactly when Ms Sharobeem first started to use the title “Dr”, purport to be a qualified psychologist or provide treatment as a psychologist. However, given her 2006 CV, and in the absence of any evidence showing that her practice of misrepresenting herself as a qualified psychologist ceased at any point before IWHS was closed in 2016, it can be reasonably inferred that this conduct occurred between at least 2006 and 2016. 

Evidence obtained by the Commission shows that Ms Sharobeem sometimes held herself out to hold just one PhD, and on other occasions claimed to have two PhDs. For example, in her 2011 application to the NSW Community Relations Commission to become a part-time commissioner, and in a 2014 email to an officer at the Anti-Discrimination Board NSW (both of which are discussed in chapter 11 of this report), she claimed to have a PhD in psychology from the American University, and a second PhD in management in organisational leadership from UTS. The available evidence shows that she consistently represented herself as a psychologist with at least one PhD in psychology. She also often claimed to have a masters degree in community management or social science. 

Ms Sharobeem’s false pretences created significant risks to the community in that she saw vulnerable people who required psychological treatment from a qualified professional. 

Corrupt conduct 

The Commission finds that, between at least 2006 and 2016, Ms Sharobeem improperly exercised her official functions by falsely claiming to be a qualified psychologist with a PhD in psychology, and providing psychological treatment to IWHS clients and patients referred to her. 

Ms Sharobeem’s conduct was corrupt conduct for the purpose of s 8 of the the ICAC Act. This is because her conduct constituted or involved the dishonest exercise of her official functions and therefore comes within s 8(1)(b) of the ICAC Act. Her conduct also constituted or involved a breach of public trust and therefore comes within s 8(1)(c) of the ICAC Act. 

The Commission is satisfied, for the purpose of s 9(1)(a) of the ICAC Act, that, if the facts it has found were proved on admissible evidence to the criminal standard of beyond reasonable doubt and accepted by an appropriate tribunal, they would be grounds on which such a tribunal would find that Ms Sharobeem committed an offence of using a protected title under s 113 of the Health Practitioner Regulation National Law (NSW). That section provides it is unlawful for a person to knowingly or recklessly take or use a title that could be reasonably expected to induce a belief that the person is registered in the health profession listed in one of the health professions  in the table to the section. The table includes “psychology” under the category of professions and “psychologist” under the category of titles. 

The Commission is also satisfied, for the purpose of s 9(1)(b) of the ICAC Act, that, if the facts as found were to be proved on admissible evidence to the requisite standard of on the balance of probabilities and accepted by an appropriate tribunal, they would be grounds on which such a tribunal would find that Ms Sharobeem committed a disciplinary offence of misconduct. 

Accordingly, the Commission is satisfied that the jurisdictional requirements of s 13(3A) of the ICAC Act are satisfied. 

The Commission is also satisfied, for the purpose of s 74BA of the ICAC Act, that Ms Sharobeem engaged in serious corrupt conduct. This is because her conduct:

• involved serious dishonesty in falsely representing herself as a qualified psychologist to her clients, government authorities, community organisations and the community at large 

• involved providing psychological treatment to a number of people over a period of years without having the requisite professional qualifications or training, thereby creating a risk to the health of members of the public at large 

• involved an extreme departure from the objects and purpose of IWHS to promote good health, including mental health, among people from a culturally and linguistically diverse background 

• occurred over a significant period of time 

• involved a substantial breach of public trust motivated by her own self-aggrandisement, which may have affected the official functions of a number of public sector agencies 

• could constitute a criminal offence under s 113 of the Health Practitioner Regulation National Law (NSW), which carries a maximum penalty of $30,000. 

The Commission finds that, between at least 2006 and 2016, Ms Sharobeem engaged in serious corrupt conduct by improperly exercising her official functions by falsely representing herself to be a qualified psychologist with a PhD in psychology and providing psychological treatment to IWHS clients and patients referred to her. 

Section 74A(2) statement 

The Commission is satisfied that Ms Sharobeem is an “affected” person with respect to the matters dealt with in this chapter. 

The Commission is not of the opinion that consideration should be given to obtaining the advice of the Director of Public Prosecutions (DPP) with respect to the prosecution of Ms Sharobeem for the criminal offence of using a protected title under s 113 of the Health Practitioner Regulation National Law (NSW) in relation to her use of the title of psychologist. This is because proceedings for this offence must be commenced within six months from the date on which the offence was alleged to have been committed, and this period has now expired. 

The Commission is of the opinion that consideration should be given to obtaining the advice of the DPP with respect to the prosecution of Ms Sharobeem for offences under s 87 of the ICAC Act in relation to her evidence that:

• she was awarded an honorary doctorate from the American University 

• she did not claim to be a psychologist when providing care to Mr X. 

Given that Ms Sharobeem no longer works for IWHS, which itself is no longer in existence, the issue of whether consideration should be given to the taking of action against her for a disciplinary offence or with a view to her dismissal does not arise.