Skimming the surface Consumer scams, identity fraud and the uprising of card skimming - Queensland Law Society
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
ISSN 1835-7199 (Print)
ISSN 1449-9207 (Online) 2010 Volume 2
Skimming the surface
Consumer scams, identity fraud and the uprising of card skimming
Children, sport Child care in
and the law Queensland:
Towards a National
Glassing Quality Framework
Going green: The Melbourne
Sustainable housing Storm salary
laws in Queensland cap scandal
The Verdict is the official publication of
the Queensland Law Society’s school
and community education service. The
Queensland Law Society provides
specialised legal information to schools,
community groups and the general public.
Editor’s comment
The Society encourages the community Calista Bruschi
to advance their knowledge of the law,
the legal system and the service solicitors
can provide.
Calista Bruschi
Editor: Calista Bruschi
Designer: Christine Fitchew
Proofreaders: Celia Casey With developments in technology we consumers are increasingly using our credit and
Vicki Moore debit cards to purchase in stores, shop and pay bills online and even give out our
Advertising: Louise Glynn personal details over the telephone. But just as technology is making it easier and
Printer: ipg print more efficient for us to conduct our business, it is also making it easy for fraudsters to
Online assistant: Kintek steal our card details, money and identity.
Regular contributors: Calista Bruschi,
Melanie Thrupp, Chris Davies, When it was reported that card skimming had been detected in my local area, it
Skye Growden, Raylene D’Cruz highlighted the importance of why I needed to be careful with my credit and debit
cards. Whilst I am not particularly flippant in the use of my bank cards, if I had to
think about where I had used them, and therefore who had been exposed to the
Editorial Enquiries: personal information they contained, the list is potentially frightening (and I don’t
Calista Bruschi: 07 3842 5849 consider myself an avid shopper).
email: c.bruschi@qls.com.au
This edition’s feature article on card skimming is a timely reminder that when it comes
Advertising
to credit and debit card fraud, offenders are uncovering new, more deceptive and
Louise Glynn: 07 3842 5931
more undetectable methods to achieve. Scams that once were conducted over the
l.glynn@qs.com.au
phone or via the mail to your letterbox, are now found on the Internet, and are being
Queensland Law Society taken to the streets through the use of mobile card skimming devices.
Law Society House
179 Ann St Banks, law enforcement agencies and retailers have warned stores and traders to
Brisbane Qld 4000 be more secure with their EFTPOS machines to prevent the installation of skimming
devices. In Queensland, new laws have been introduced aimed at curbing the growth
GPO Box 1785 of identity theft, by targeting criminals who skim credit and debit cards.
Brisbane Qld 4001
The Verdict is published by the You may not have been a victim of such a crime, but the social and financial costs of
Queensland Law Society. having to rebuild your reputation, and the time it takes for both, should encourage you
© Queensland Law Society 2010. to be vigilant.
Disclaimer
Contributors to The Verdict express their
own views and these do not necessarily
reflect the opinions or views of the
Queensland Law Society. The content
of any part of The Verdict should not be
construed as legal or professional advice.
2010 Volume 2
5 22
20
Contents
Features Regular features
02 Skimming the surface:
Consumer scams, identity fraud and the
08 Private eye
uprising of card skimming
12 In the news
05 Children, sport and the law
19 Web weaving
09 Law and justice in your community:
Law week 2010
27 Puzzle
10 The Melbourne Storm salary cap scandal
28 Glossary
14 Child care in Queensland:
Towards a national quality framework 28 Events calendar
18 Law and justice in your community:
Law week 2010
28 Puzzle solution
20 Going green: Sustainable housing laws in Queensland
22 Glassing
Feature
Skimming the surface:
Consumer scams, identity fraud and the uprising of card skimming
by Calista Bruschi
Credit and debit card skimming has emerged that elicited the largest percentage of
as a significant law enforcement issue for positive responses, while lottery scams and
Australia in recent years. It is estimated that card It is estimated that money transfers respectively were the next
skimming costs many Australian individuals and most successful for generating a positive
businesses in excess of $100 million every year1. card skimming costs response. It also appeared that the impacts
However, card skimming is only the latest on victims are as diverse as the type of
attack method in a series of e-crimes aimed many Australian scams. However, victims of identity fraud
at defrauding consumers. Other activities
of deception include online auction fraud, individuals and specifically, were not only impacted upon
financially; loss of savings, costs associated
computer hacking, identity theft, and advance
fee schemes. Collectively, consumer scams businesses in excess with reporting and preventing identity use,
and the cost of restoring a credit rating and/
contribute a considerable portion of the $8.5
billion cost that fraud has on the Australian of $100 million or personal and professional reputations,
but also experienced physical and mental
community.
As a result of rapidly changing technology, and every year . 1 impacts, especially when an identity had
been stolen and used in a criminal activity. A
especially since the introduction of the Internet, 2004 study exploring the psychological and
where there is an unprecedented access somatic impacts of identity theft revealed that
to online databases, now more than ever before consumers are emotional and physical reactions from victims ranged from anger and
encouraged to be vigilant against those targeting the unsuspecting. paranoia to anxiety, sleep deprivation or disruption and depression4.
Consumer scams Identity fraud
Consumer scams have been defined as ‘a fraudulent invitation, In the simplest sense, identity fraud involves the creation of a false
request, notification or offer, designed to obtain someone’s personal identity for oneself, or the use of the stolen identity of another person
information or money or otherwise obtain a financial benefit by to impersonate that other person, in order to carry out illegal activities5.
deceptive means’2. It is difficult to know for sure just how many It is a fast-growing crime, and it is a crime that is regarded as the
Australians are affected by consumer scams and identity fraud each primary step in a broader series of offences. These offences include:
year. This is due largely to the diversity of offences and the number ■■ The use of stolen credit or debit cards, or credit or debit
of unreported fraud incidents. The Australian Institute of Criminology, card numbers
as part of the Australasian Consumer Fraud Taskforce, conducted ■■ Forging credit or debit cards
an online survey between January and March 2008 which helped ■■ Fraudulently receiving money
determine the types of scam invitations3. The survey defined ‘victims’ ■■ Creating fake bank accounts, or applying for loans
as persons who had responded in a positive way with those who had ■■ Fraudulently claiming financial benefits, such as pensions or
sent the unsolicited invitations by requesting further information or entitlements (eg., Centrelink)
by supplying personal details or money. Four specific types of scam ■■ Evading the payment of taxes or other debts
invitations were identified: On a larger scale, identity fraud is used in money laundering, terrorism,
■■ Lottery scams, where the offer of a prize, usually from an overseas people smuggling, drug trafficking and drug smuggling, and stalking6.
location, is presented even though the person has not entered Possibly the most alarming example of how identity fraud can be
■■ Money transfer scams involving requests to transfer money into used to carry out a criminal activity is in the destruction caused by
a person’s bank account. The story associated with this form of terrorists when they caused two aeroplanes to crash into the World
scam varies, but the common component is that upfront payment is Trade Centres in the United States of America in September 2001.
exchanged for the promise of a larger repayment in the future The terrorists paid a legal secretary to falsify court documents and
■■ Phishing scams involving fraudulent requests for personal details. residency information which were used to obtain official identification
The success of this form of scam is that ‘scammers’ usually purport papers from the government, permitting them to board the aeroplanes
themselves to be well-known and respected businesses and request which they then hijacked7.
confirmation of details such as bank account numbers or passwords However, identity fraud need not be an elaborate operation. Journalist
■■ Financial advice scams, where the promise to ‘get rich quick’ is offered. Nancy Perry recalled her personal experience after a hacker pulled
A fifth category, for ‘other’ scams included ‘work from home’, her personal file from a credit reporting agency:
‘inheritance’ and ‘dating and romance’ scams. It was this category, “In minutes…he had a virtual summary of my life: past addresses and
2 The Verdict – Volume 2, 2010
Feature
employers, credit card numbers, mortgage information, bank accounts
and all the other personal data that appear on the credit reports for me
and 160 million other Americans. Armed with that information, he was
able to open nearly 30 separate loan, checking and credit accounts
at banks, department stores, electronics retailers, appliance outlets
and other merchants. And he did it as fast as kids unwrap birthday
presents.’ 8
In Queensland, the Crime and Misconduct Commission (CMC) stated
that identity fraud was the fastest growing category of fraud offences
globally9. Technological advancements, including improvements
in photocopying, scanning and printing equipment and image
enhancement software, have made it easier for criminal groups to
access personal information and create legitimate-looking, but albeit
fraudulent, documents.
Protecting consumers against fraud is an on-going issue, and with the
emergence of credit and debit card skimming in recent years, scams
are evolving in order to remain viable.
Card skimming
Card skimming is the illegal copying of information from the magnetic
strip of a credit or debit card, usually by electronic means. The unique
aspect of card skimming is that it can occur at any time in any location
and does not require any sort of contact between the person skimming
the information and the card holder. The personal details of the card activities associated with card skimming, it is unlikely that any of these
holder can be retrieved and stored for later transmission by using a would sufficiently meet the needs of victims of card skimming offences.
device (known as a ‘skimmer’) specifically designed to capture the Similar circumstances exist in relation to identity fraud offences, with
data from the magnetic strip of the card. Such devices can be used at difficulties in applying conventional fraud offences for instances of
automatic teller machines (ATM) or terminals at the point of purchase identity fraud. In fact, the Commonwealth and South Australia are
(EFTPOS). Whilst it is also common for new credit cards to be stolen the only two jurisdictions that specifically criminalise identity fraud16.
from customers’ mailboxes in order to obtain the personal identifying In Queensland, the Criminal Code was amended in 2007 to provide
information, the most notable method of card skimming is by ‘bugging’ an offence for obtaining and dealing with identification information17,
an ATM or EFTPOS terminal or by tapping the telephone cables, but does not cover the possession of equipment necessary to commit
making detection difficult10. identity fraud. There is also no current law prohibiting the importation
The arrest of two men involved in an alleged EFTPOS skimming ring of a skimming device, as doing so would complicate the importation of
in April 2010 prompted the Queensland police to renew consumer magnetic strip readers for legitimate purposes in Australia.
warnings about the dangers of scams. Detective Acting Chief The biggest drawback in providing adequate legislation for identity
Superintendent, Peter Crawford of the Queensland Police Service fraud and card skimming offences seems to be related to the rapidly
said card skimming technology was constantly evolving, and that “the changing technology. It has also been suggested that Australia is
complexity and sophistication of the methods being used are changing lagging behind countries such as Japan, South Korea, Taiwan and
and becoming much more efficient”11. Malaysia (regarded as being the biggest in the credit card market)
In Australia, credit and debit card skimming cost individuals and and is an easy target18. However, legislation that specifically covers
businesses in 2008/2009 approximately $70 million12. It is a problem offences of credit and debit card skimming, and identity fraud will
that is certain to increase with the launch of ‘contactless’ credit cards assist in reducing the occurrence and impact these activities have.
by two notable banking institutions in Australia13. Contactless cards In the meantime, the most effective measures to protect consumers
contain a small radio frequency identification (RFID) device that is from becoming victims of these offences are community vigilance,
capable of transmitting information to a compatible reader or terminal. awareness and continued education. The Australian Government
The RFIDs come in various configurations. At best, the RFID will website, SCAMwatch, as well as a number of banking and financial
have only a short range with which to communicate with a terminal; institutions, offers tips to help consumers protect themselves from
being activated when placed in close proximity to a terminal to have scams, credit and debit card skimming and identity fraud.
the card’s information transmitted. However, concern has been raised
over the safety and security of the cards, with the potential for skilled SCAMwatch Golden Rules19
fraudsters to develop a ‘rogue terminal’ so that the card’s information Almost everyone will be approached by a scammer at some stage,
can be read from a greater distance and reproduced. Hand-held but SCAMwatch has put together the following ‘golden rules’ for
portable skimmers have been discovered in Australia that are the size consumers to protect themselves:
of a pager, but there are also reports that smaller devices have been ■■ If it looks too good to be true, it probably is
designed overseas14. When RFID passports were introduced in the ■■ Use your common sense: the offer may be a scam
United Kingdom in 2006 it took just two days for the passports and ■■ Always get independent advice if an offer involves significant money,
the information they contained to be cloned15, and with instructions on time or commitment
building small terminals available on the Internet, it is only a matter of ■■ There are no get-rich-quick schemes: the only people who make
time before the face of identity fraud changes again. money quickly are the scammers
■■ Do not agree to offers or deals straight away: tell the person you are
Laws relating to skimming not interested or that you want independent advice before making
The activity of credit and debit card skimming poses a number of a decision
challenges when it comes to the enforcement of current laws. Often, ■■ Contact your local office of fair trading, ASIC or the ACCC for
it is not known by the card holder that a crime has been committed assistance
until the bank statement arrives and the fraudulent purchases are ■■ Never send money or give credit card or online account details to
uncovered. While a number of offences exist that would cover the anyone you do not know and trust
The Verdict – Volume 2, 2010 3
Feature
■■ Check your bank account and credit card statements when you get Warning signs and protection against card
them; transactions that cannot be explained need to be reported to skimming21
your credit union or bank Card skimming is the newest way for scammers to steal a person’s
identity, and use those personal details to commit identity fraud. With
access to personal information, and more importantly, bank account
“Identity thieves use all methods details, scammers can steal money or take out loans in your name.
Be aware if:
to build profiles on people, ■■ A shop assistant takes your bank card out of sight to make a
transaction
including rummaging through ■■ You are asked to swipe your card through more than one machine
■■ You see your card being swiped through a machine different to the
garbage for records of past one you used
■■ You notice something suspicious or unusual about the card slot on
purchases, expired credit and an ATM (such as an attached device)
■■ You notice unauthorised or unusual transactions on your account or
other cards, and telephone credit card statements
and utility bills.” To protect yourself:
■■ Keep your credit and debit cards safe, and do not share your
personal identity number (PIN) with anyone. Avoid keeping a written
copy of the PIN with the card
Protect your identity20 ■■ Check bank account and credit card statements when they arrive,
In addition to scams, the Australian Competition and Consumer and be on the lookout for any transactions that cannot be explained,
Commission released some guidelines for consumers to avoid having which should then be reported to your financial institution
their identity stolen: ■■ Choose passwords that are difficult for any other person to guess
■■ People that you meet online or casually may not be people you can ■■ At ATMs, take the time to check for suspicious items, and do not use
trust, do not give them personal information like phone numbers, the machine if you suspect it has been tampered with.
addresses or important confirming evidence like children’s or
spouse’s names Endnotes
1. Model Criminal Code Chapter 3 Credit Card Skimming Offences Final Report, Standing
■■ Identity thieves use all methods to build profiles on people, including Committee of Attorneys-General, February 2006, p1.
rummaging through garbage for records of past purchases, expired 2. Smith, RG. & Budd, C. ‘Consumer fraud in Australia: costs, rates and awareness of the risks
in 2008’, Trends & issues in crime and criminal justice No. 382 September 2009.
credit and other cards, and telephone and utility bills. Destroy these 3. Smith, RG. & Budd, C. ‘Consumer fraud in Australia: costs, rates and awareness of the risks
by ripping them up or shredding them before they are discarded in 2008’, Trends & issues in crime and criminal justice No. 382 September 2009, p3.
4. Marron, D. ‘Alter Reality’, Governing the Risk of Identity Theft, Oxford University Press on
■■ Check credit reports from reputable sources. If there are unpaid behalf of the Centre for Crime and Justice Studies, September 2007, p26, see: http://bjc.
accounts that are unknown, access the online identity kit oxfordjournals.org.
5. Pontell, H. ‘’Pleased to meet you… won’t you guess my name?’ identity fraud, cyber-crime
(www.crimeprevention.gov.au) for advice about dealing and white collar delinquency’, Adelaide Law Review 23(2), 2002, pp 305-328, p306.
with the problem. 6. Blindell, J. ‘Review of the legal status and rights of victims of identity theft in Australasia’,
Privacy Law Bulletin Vol 4 Nos 4&5, October/November 2006, pp 58-60, p58.
7. Pontell, H. ‘’Pleased to meet you… won’t you guess my name?’ identity fraud, cyber-crime
and white collar delinquency’, Adelaide Law Review 23(2), 2002, pp 305-306.
8. Pontell, H. ‘’Pleased to meet you… won’t you guess my name?’ identity fraud, cyber-crime
and white collar delinquency’, Adelaide Law Review 23(2), 2002, pp 305-328, p316.
9. Crime and Misconduct Commission, ‘Organised fraud in Queensland – A strategic
assessment’, Crime Bulletin, No. 10, October 2009, p1.
10. Model Criminal Code Chapter 3 Credit Card Skimming Offences Final Report, Standing
Committee of Attorneys-General, February 2006, p3.
11. Berry, P. ‘Card-skimming devices ‘hard to detect’’, Sydney Morning Herald, 7 April 2010,
see: http://news.smh.com.au/breaking-news-national/cardskimming-devices-hard-to-detect-
20100407-rrnu.html.
12. 1Berry, P. ‘Card-skimming devices ‘hard to detect’’, Sydney Morning Herald, 7 April 2010,
see: http://news.smh.com.au/breaking-news-national/cardskimming-devices-hard-to-detect-
20100407-rrnu.html.
13. Tyree, AL. & Sheahan (SC), J. ‘Banking law and banking practice – Contactless cards’,
Journal of banking and finance law and practice 21(56), 2010, pp 56-58.
14. Model Criminal Code Chapter 3 Credit Card Skimming Offences Final Report, Standing
Committee of Attorneys-General, February 2006, p15.
15. Tyree, AL. & Sheahan (SC), J. ‘Banking law and banking practice – Contactless cards’,
Journal of banking and finance law and practice 21(56), 2010, pp 56-58.
16. Model Criminal Code Chapter 3 Credit Card Skimming Offences Final Report, Standing
Committee of Attorneys-General, February 2006.
17. Criminal Code Act 1899 (Qld), Chapter 37, Section 408D.
18. Model Criminal Code Chapter 3 Credit Card Skimming Offences Final Report, Standing
Committee of Attorneys-General, February 2006, p11.
19. SCAMwatch. ‘How to protect yourself – Golden rules’, see: www.scamwatch.gov.au.
20. Australian Competition and Consumer Commission, March 2007, see: www.accc.gov.au.
21. SCAMwatch. ‘Card skimming’, see: www.scamwatch.gov.au.
4 The Verdict – Volume 2, 2010
Feature
Children, A recent push for more
children to participate
sport and in organised sports has
law
prompted a closer look at
the laws protecting kids as
the they play.
by Dr Chris Davies
Sport promotes exercise, team work and (importantly) fun, but as
with all sports, children’s sport can become hugely competitive
and the ‘win at all costs’ mentality can have some pretty big legal
ramifications attached to it.
Sports law essentially involves the application of the general law to
a sporting context, which also means that children in sport may be
treated differently by the law when compared to adults.
But just how does the law apply to children involved in sport in
regard to areas such as contract law, criminal law and torts? How
do these laws help protect children participating in organised sport?
Contractual capacity and children
It is sometimes difficult to comprehend why young people
celebrate when they reach the age of 21 years, when all rights
such as voting and the capacity to form contracts, can be legally
obtained at 18 years of age. The fact is purely historical. The age
where people were considered to have reached their maturity, and
afforded the opportunity to make ‘adult’ decisions and embrace full
legal rights was at 21 years. However, legislation amended in the
mid-20th Century brought the age to 18 years.
The age for contractual capacity today is 18 years and a person
under that age, even by one day, is considered to lack the capacity
to make such a responsible decision, and is considered by the
law to be a minor. The rationale fo r applying incapacity to minors
is to protect them from the consequences of their own actions,
and potential exploitation, due to their immaturity and lack of
experience. However, this is not true of all contracts since the law
classifies contracts involving minors into two broad categories.
The first category is for those things relating to necessaries,
employment and education. The second category relates to things
that are deemed to be ‘non-necessary’. Necessaries are defined
as items that cannot be dispensed with, such as food, drink and
clothing, while employment and education are essentially self-
explanatory. If a contract falls within the first category then the
minor is considered to be bound by the terms of the contract, and
therefore liable under the contract. However, if the contract falls
into the second category involving non-necessaries then it will be
a contract where a minor can choose to either keep the benefits of
the contract, or choose not to be bound by it.
To illustrate the point is the case involving Les Darcy, a well-known
Australian sporting figure due to his boxing exploits around the
time of the First World War. Darcy died tragically young while in the
United States, having gone there in 1916 to further his career. For
this trip he acquired the services of a solicitor named McLaughlin
who was asked to try and obtain a passport for Darcy. After Darcy
died, McLaughlin successfully sued Darcy’s estate whose defence
of the lack of capacity failed on the grounds that the contract for
the services of McLaughlin in regard to the passport was one for a
necessity, was reasonable and of benefit to Darcy1.
Perhaps the area where the issue of contractual capacity and
children in sport is most likely to arise is in regard to player
The Verdict – Volume 2, 2010 5
Feature
Children, Sport
and the Law
agents, as illustrated by Proform Sports Management Ltd v Proactive football codes played in Australia?
Sports Management Ltd 2. This case involved Manchester United and This was a question that was raised in Green v Country Rugby League9.
England soccer player, Wayne Rooney, who had been recognised as Green was a 16 year old who played rugby league for Laurieton
a potential star of the game while still a schoolboy, and at the age of 15 United’s reserve grade team in the Country Rugby League’s (CRL)
was already playing with another Premier League Club, Everton. Under Group Three competition on the mid-north coast of New South Wales.
the Football Association rules he could not sign an actual professional He was selected as hooker for a match against the Old Bar Pirates, a
contract until he was 17 years old3. He had signed an agreement with team that had a front row significantly bigger than Laurieton’s. Green
Proform, a player management company, which was to last for two himself was described as being slight in build, at around 175cm in
years from 12 December 2000. On 27 June 2002, Rooney sent a letter height and weighing 57kg. Another significant factor was that he had
to Proform advising that he would not be renewing the agreement at a neck that was considered to be slightly longer than average. During
the end of the two year period, and in a letter dated the 1 July 2002, the match a scrum collapsed which left Green a permanent tetraplegic,
stated that he would be signing with another company, Proactive. with the issue then being whether the CRL was negligent in allowing
When Proform sued for breach of contract, it was held that while the someone with a long neck to play in the position of hooker.
contract with Everton fell within the category of contracts that will bind It was held that while the CRL was ultimately responsible for the
a minor, the contract with Proform did not4. This was due to the fact that administration of country rugby league in New South Wales, and
Proform did not undertake or address matters essential to Rooney’s therefore owed a duty of care to Green, there had been no breach of
living or livelihood, and nor did it enable Rooney to earn a living as a that duty for not arranging medical examinations to establish whether
professional footballer5. a player was suitable to play in the front row or not10. The court also
Children or minors, those under the age of 18 years, are bound by accepted that the accredited coaching system the CRL had in place,
employment contracts, and can be employed to provide services at and the limited financial resources of the CRL, meant that it had taken a
sporting events, or be taken on as a racing apprentice or a golf trainee. reasonable response to the risk of injuries to players of Green’s physique.
Only if a minor signs a contract that is for non-necessaries can they Schools, as owners or occupiers of land on which school sport is being
elect to have the benefit of that contract or, like Wayne Rooney, can played, may also be responsible for injuries suffered by any children
they elect not to be bound by that contract. using the facility. In Bujnowicz v Trustees of the Roman Catholic
Church of the Archdiocese of Sydney11, for instance, a 14 year old boy
Torts liability and children injured his knee after stepping into a pothole on the school oval. The
The question of torts liability and children involves the examination of school was held liable as a regular inspection by the ground staff was
two issues: considered both a cost-effective and simple means of preventing such
■■ the duties that are owed to children an injury12. However, this duty involves no more than what any owner/
■■ the duties that are owed by children occupier would be liable for, and in Williams v Latrobe Council13 the
In regard to the first situation, those professionally responsible for the council was similarly held liable after an Australian footballer badly hurt
supervision of children will owe a duty of care to those children, for his ankle after stepping into a sprinkler hole during a men’s competition
example in areas such as school sport. This duty is broader than just match.
mere supervision and in Watson v Haines6 for instance, a 15 year old In relation to duty owed by children, a child is generally responsible
boy with a long, thin neck was selected to play hooker for his school for the consequences of their wrongful acts. However, the degree of
and, after a scrum collapsed and fractured his cervical spine, he liability required of a child requires the age of the child and the level
became a quadriplegic. of maturity for a child of that age to be considered when examining
While the teachers were held not to be liable7, the Education the standard of care. To some extent, the child’s state of mind is also
Department was held to be responsible for the accident as it had been a consideration, as a young child may be aware of what he or she
made aware of the potential dangers associated with students built like is doing and even know that the action is wrong, but may lack the
Watson packing into a scrum and had failed to take reasonable care foresight to consider the consequences of his or her action. In McHale
for the safety of its players8. v Watson14, for example, a 12 year old boy threw a metal dart at a post
If an Education Department can be held liable for serious injuries but the dart rebounded off the post and caught a nine year old girl in
suffered by competitor, what about the various governing bodies of the the eye. The boy was not found to be liable for the incident as it was
6 The Verdict – Volume 2, 2010
Feature
deemed that a 12 year old boy lacked the capacity to foresee that the Child protection legislation
dart might not stick to the post and could glance off and hit someone. Various areas of law will provide protection to children. However, it has
However, the closer a child is to adulthood, the more the standard of been over the last decade that the enactment of specific legislation
care will resemble that expected of an adult. In Leydon v Caboolture aimed at the general protection of children has taken place. These
Shire Council,15 15 year old Scott Leydon was injured while riding include the Child Protection Act 1999 (Qld), and the Child Protection
his BMX bike on a council-owned track. He had been riding on the (Offender Reporting) Act 2004 (Qld) which requires those who have
track for a number of years and was therefore familiar with it. The committed sexual and other serious offences against children to keep
council raised the defence of the volenti non fit injuria, (the voluntary police informed of their whereabouts.
assumption of risk) and it was noted by the Court that while Leydon In Queensland, a Commission has been established under the
was at an age where the degree of maturity can vary significantly Commission for Children and Young People and Child Guardian Act
between individuals, it was still an important factor for consideration. 2000 (Qld). Under this Act employees and volunteers in sport and
Leydon was considered to be ‘sufficiently able to assess the risks for recreational activities must obtain a Blue Card. Blue Cards are issued
himself’16, and he was fully aware of the risk, had voluntarily incurred by the Commission for Children and Young People and Child Guardian
it, and although he was not an adult he was still ‘sufficiently mature to to see if a person is eligible to work in the areas of child-related work
justify the success of the defence’17. covered by the Act. The only exception is for volunteers whose own
What the cases indicate is that under contract law, capacity is based on children is competing in that sport or recreational activity. These Acts
the exact age of 18 years. Under tort law, age is a factor that should be acknowledge that children, including those involved in sport, can be
considered, but there is no exact age where the person is considered placed in vulnerable position and hence need to be protected.
to be an adult and therefore decisions are based on the maturity level
of the individual concerned. In criminal law, the position is perhaps best Conclusion
described as being somewhere between the contract law situation and Sport is played by people of all ages, including children, and is also an
that found in torts. area in which the law is increasingly involved. When examining contract,
criminal and tort laws, it is clear that there is some modification in how
Criminal law, responsibility and children the legislation is to be applied to children. This provides appropriate
Where children face criminal charges after violent acts on a sporting protection to children, and takes into consideration the lack of maturity
field, the doctrine of doli incapax will apply. What this doctrine means and therefore the responsibility that should be placed on children.
is that a child under the age of 10 years is not considered capable The particular situation involving children is also reflected in various
of committing a crime, while under s29 of the Criminal Code 1899 discrimination and protective statutes. Therefore, children and the law
(Qld) a child under the age of 14 years is not considered criminally can be said to be a distinct area of sports law.
responsible for any act or omission, unless it can be proved that the
person has the capacity to know that they should not have done the act Endnotes
or omission. This means that with such a child, the prosecution must 1 McLaughlin v Darcy (1918) 18 SR (NSW) 585 at 592.
2 [2007] 1 All ER 542.
prove the elements of the offence, and also demonstrate that the child 3 Ibid at 550.
understood that he or she was doing something wrong. Like contract 4 Ibid at 555.
5 Ibid at 556.
law, there are definite ages recognised by the criminal law, but as with 6 [1987] Aust Tort Reports 80-094.
torts, the characteristics of the individual concerned also needs to be 7 Ibid at 68, 558.
taken into account. 8 Ibid at 68,572-3.
9 [2008] NSWSC 26
10 Ibid, [146].
Discrimination and children 11 [2005] NSWCA 457.
Before the age of around 12 years it has been argued that from a 12 Ibid at [57].
13 [2007] TASSC 2 at [69].
physical strength perspective, little difference exists between boys 14 (1965) 115 CLR 199.
and girls which is why usually both genders are entitled to compete in 15 [2007] QCA 134.
16 Ibid at [40].
each other’s sporting events. A girl can play football or cricket in boys’ 17 Ibid at [42].
competitions while boys can also play in girls’ netball competitions. 18 Taylor v Moorabbin Saints Junior Football League and Football Victoria Ltd [2004]
However under the Anti-discrimination Act 1991 (Qld), a person is VCAT 158.
19 Ibid at [75].
allowed to be excluded on the grounds of gender from participating in 20 Ibid at [82].
a competitive sport if it is an activity in which strength, stamina or the 21 Ibid at [82].
physique of competitors is relevant. 22 Unreported, ADTVIC, No 207 of 1997.
The Victorian case of Taylor v Moorabbin Saints18 examined the
question of when children should be prevented from participating
in sport organised for the other gender. In this case two girls were
excluded from playing in an under 15 boys Australian football
competition, and one from an under 14 competition. It was held that
the relative differences in strength, stamina and physique between
the sexes in the under 15 competition was sufficiently significant19,
which meant it was lawful for girls to be excluded from the under
15 competitions20. However, it was also held that it was unlawful to
exclude girls from the under 14 competition as the physical differences
were not yet significant21.
Similarly, in Robertson v Australian Ice Hockey Federation and
Victorian Ice Hockey Association22 it was not unlawful discrimination to
prevent a 15 year old girl from playing in a boys’ ice hockey competition.
The girl sought to play in the position of goalie, but was refused on
the grounds that comparative strength, stamina and physique were
relevant to the game and she would be at serious risk of injury.
The Verdict – Volume 2, 2010 7
Regular feature
They appear in shopping centres, at court houses, and sometimes in
council libraries, providing legal services to the community at no charge.
Pri
vat But just what is a Justice
ee
ye. of the Peace?
..
by Calista Bruschi
As defined by the Department of Justice and Attorney-General on their ■■ you are of good character
website, a Justice of the Peace (JP) is an entrusted citizen who takes ■■ you are registered on the State electoral roll.
on special responsibilities within the legal system for the benefit of their
community. Criminal history or traffic offences, such as speeding fines, must
The position of a Justice of the Peace is honorary, which means that be disclosed on a person’s application form, even if the incident/s
no payment is received for the services carried out in the position. In happened a long time ago. The Registrar of Justices of the Peace and
the past, people were appointed to the position of a JP because of their the Commissioners for Declarations considers this information when
standing in the community; they were honest citizens who could be assessing suitability for the role.
relied upon to carry out their duties conscientiously. Their assistance The procedure for application to the role of a Justice of the Peace
in the legal system alleviates many of the pressures faced by lawyers differs depending on the category chosen. For example, for a
and the over-stretched courts, as JPs focus on routine matters and C.dec application forms are obtained from the local State Member
lawyers and the courts are freed to concentrate on cases requiring of Parliament, and once completed are returned to the Registrar of
professional legal training. Justices of the Peace and Commissioners for Declarations. There is
A Justice of the Peace, while not required to have a formal education in no exam and no formal training required. However, the role of Justice
the law, must have a basic understanding of the legal system. JPs are of the Peace (Qualified) involves an exam that must be passed before
now offered training to allow them to carry out their necessary duties. an application form can be submitted.
There are three categories for Justices of the Peace, and each category Further information about Justices of the Peace can be obtained from
allows a JP to choose the level of responsibility they wish to take on. the offices of each State Parliament Member in Queensland, and the
Commissioners for Declarations (C.dec) have purely administrative Justices of the Peace Branch within the Department of Justice and
duties. The category includes Justices of the Peace (Commissioners Attorney-General, justice.qld.gov.au.
for Declarations), abbreviated as JP (C.dec), and their duties are:
■■ witnessing signatures on documents
■■ certifying true copies of documents.
Justices of the Peace (Qualified) have the same duties as C.decs, but
are also able to:
■■ issue search warrants
■■ remand defendants (returning defendants to custody until their case
can be heard)
■■ adjourn court hearings
■■ grant bail.
Justices of the Peace (Magistrates Court) have the same duties as JP
(Qual), as well as:
■■ being able to conduct committal hearings
■■ hearing simple offences where the defendant has pleaded guilty.
Anyone can become a Commissioner for Declarations or a Justice of
the Peace so long as the eligibility criteria are met, which is:
■■ you are an Australian citizen by birth, descent or grant
■■ you are at least 18 years of age
8 The Verdict – Volume 2, 2010Regular feature
Interview with Melanie Thrupp
1. There are three categories for Justices 4. What sort of activities have you had to department for almost three years, and it
of the Peace, which category do you deal with in your role as a JP (Qual)? was a real eye opener and a great stepping
fall into? The most common part of my role is stone. It taught me a lot about myself and it
I am a Justice of the Peace (Qualified). certifying true copies of documents, helped me develop my knowledge into real
followed closely by witnessing signatures life skills. I believe that most professional
2. How long have you held the position? on documents (e.g., contracts, lease sectors help you develop the fundamental
I studied for the exam during high school. documents, statutory declarations, skills needed to be able to cross over if you
I believe our school, Clontarf Beach State advanced health directives etc). There are choose to change career path. A career in
High School, was the first in Queensland plenty of other aspects to my role, such as law still isn’t completely off the cards, but
to offer a study group for JP training to its issuing search warrants, adjourning court at the moment I am happy where I am,
high school students as an extra-school hearings and granting bail, but I haven’t doing what I am doing. It is rewarding to
activity. I completed the competency exam been asked to deal with any of these yet. leave the office each day knowing I have
and was qualified to become a JP when accomplished something, and I feel it is
I was 17 years of age. However, I had to 5. What is your current job? important to find a job that fulfils. A career
wait until I was 18 years to be formally I work for an accounting practice based in any industry requires drive and passion.
accepted into the role, which means I in Brisbane’s Fortitude Valley. My role is
have been a fully-fledged JP for about five currently a dual position – Administration 7. What do you consider to be the biggest
years now. Manager and Personal Assistant to value of your role as a Justice of the
the Managing Director. It can be quite Peace?
3. What attracted you to the role of a JP, demanding, but I enjoy the challenges The role of a Justice of the Peace is
especially at such a young age? and fast pace afforded by small business. important to the justice system. We
Being a Justice of the Peace is a huge The positive influences of my colleagues help with matters that free up lawyers
responsibility and I feel that I have a strong have contributed to both my personal and and allow them to deal with other issues
personality, coupled with the maturity to professional development. instead of getting caught in the paper trail.
handle this role within my community. I JPs focus on the finer details of crossing
was very academic during my school years 6. Given that the role of a Justice of the the t’s and dotting the i’s. Our volunteer
and I accepted any extra activities offered Peace takes on responsibilities within services allow the Courts to focus on more
to me with open arms. At the end of the the legal system, did you ever consider important issues like prosecuting the ‘bad
day I knew that such a role would appeal a career in law? guys’. When you educate the community
to most prospective employers (especially I did consider that path for quite a while. on the importance our legal system has
for someone of my age) and it would show My first ‘real’ job – out of high school – was for society, we can all do our part to help
my ability to handle responsibility and an working with the Queensland Law Society ensure justice is met.
eagerness to be proactive. My aim in life (a position I was encouraged to apply for
has generally been to excel in all tasks by my high school Legal Studies teacher).
given to me and to exceed expectation. I worked mostly within their events
Break down the wall to learning about the law
Publications
Fact sheets
Useful links and resources
Events and competitions
visit sces.qls.com.au
The Verdict – Volume 2, 2010 9Feature
The Melbourne Storm
salary cap scandal
by Dr Chris Davies
Chris Davies is a Senior Lecturer at the School of Law, James Cook University. He has PhD from the Faculty of Law, University of Sydney.
Chris has published papers in the area of restraint trade and other areas of sports law, and presented conference papers in sports law.
In 2003, The Verdict published an article accurate, since what was involved only
examining the use of salary caps in breached the NRL rules, which are not really
Australia’s professional team sports.1 Since laws as such. In fact, it is more likely that
then, salary caps have continued to be used. that the salary cap itself is illegal since, like
However, the recent exposure of Melbourne all labour market controls in sport, it may be
Storm’s breaches of the National Rugby considered by a court to be an unreasonable
League (NRL) salary cap has highlighted restraint of trade. However, given that it
that the enforcement of a salary cap can be has been successful in creating an even
problematic for sport governing bodies. competition, a legitimate objective of the NRL,
it is a valid, reasonable restraint of trade. An
Why the NRL has a salary cap interesting aspect of the Melbourne Storm
The present day National Rugby League scandal is that there has been no mention of
(NRL) has its origins in the Sydney-based the National Rugby League salary cap being
competition run by the New South Wales challenged, and the legal challenge has been
Rugby League (NSWRL). It then evolved brought on the basis that the NRL did not
into a more national competition, initially run follow its own rules in reaching its decision by
by the Australian Rugby League (ARL), and not allowing the Melbourne Storm sufficient
then by the NRL. The NSWRL first introduced time to prepare its reply to the allegations.
a salary cap in 1990, along with a draft system At the 22 April press conference, David
for player selection, though the draft system Gallop had outlined the penalties imposed
was successfully challenged by the players.2 on the Melbourne Storm, which were
During the Super League war when News undoubtedly the harshest ever imposed in
Limited and the ARL tried to attract the best What was involved with the Australian team sport.
players by offering high wages, well beyond Melbourne Storm scandal
the revenue being generated, the salary cap On the afternoon of Thursday 22 April 2010, The NRL penalties and why they
was dropped. NRL chief executive, David Gallop, and News had to be implemented
The NRL was formed in 1998 after a Limited’s chief executive, John Hartigan, The penalties imposed on the Melbourne
compromise was reached between News conducted a television news conference at Storm by the National Rugby League were as
Limited, which was running and financially which it was announced that reigning premiers, follows:
supporting Super League, and the ARL. Two the Melbourne Storm, had been involved in ■■ Loss of the 2007 and 2009 premierships;
years later a salary cap was introduced to systematic breaches of the salary cap over a ■■ A fine of $500,000;
help create a more even, financially more five year period. This had been achieved by ■■ The repayment of $1.1 million in
stable, competition which is recognised by having two sets of contracts - the official ones prizemoney;
the courts as being a legitimate objective for a which showed the Melbourne Storm keeping ■■ Loss of all competition points already
league.3 While assessing whether a salary to the salary cap, and a second contract kept accumulated for the 2010 season;
cap has actually created a more even in a separate storage that reflected what the ■■ Inability to compete for competition points
competition is a fairly subjective process, players were actually being paid. When the for the remainder of the 2010 season;
it can be suggested that it has achieved its Melbourne Storm won the 2009 premiership, ■■ Requirement to not only get under the
purpose, based on the diversity of teams it was estimated the club was approximately salary cap for the 2011 season but must
making the finals, grand finals and attaining $400,000 over the salary cap, and around also, to some extent, disband the side.
premierships, over the last ten years. $700,000 over the cap for the 2010 season. So, why did the NRL impose such harsh
However, the Canterbury Bulldog salary Overall, the extra payments were estimated penalties, and was the NRL justified in
cap breach scandal in 2002 and the recent to be around $1.7m for the five year period.4 It imposing them?
Melbourne Storm salary cap breach in the was recently reported that the club breached Of the penalties, the harshest was the
early part of the 2010 NRL season competition the salary cap by $3.17m between 2006 and decision to strip the Melbourne Storm of the
have shown clubs may be willing to breach 2010. Two times higher than initially predicted premierships won in 2007 and 2009 when
the salary cap rules. by owner News Limited. it beat Manly and Parramatta respectively.
The breaches have been described as ‘illegal Given the extent, and the deliberate nature of
salary cap breaches’ but that is not entirely the breaches, it was impossible for the NRL
10 The Verdict – Volume 2, 2010Feature
to allow Melbourne to keep the titles, since it to be in breach of the salary cap in 2002, it at that time. This illustrates that one of the
would have been totally unfair on the other was docked of all its points in that season, reasons why a competition like the NRL has a
clubs which had stayed under the salary but it was allowed to keep all its players, and salary cap is to maintain financial stability by
cap. The Brisbane Broncos, for instance, are subsequently won the NRL Grand Final in limiting player payments to revenue.
one club which lost players such as Petero 2004. To ensure this scenario is not repeated With that in mind, the NRL will likely retain
Civoniceva because of salary cap problems, in the case of the Melbourne Storm, the NRL its salary cap, despite the problems with the
yet are one of the few clubs in the NRL that has imposed that the team must be disbanded Melbourne Storm, with support from the chief
could probably pay its players more than to some degree at the end of the season. executives of each of the clubs.7
the present salary cap. However, the NRL
also decided not to award the premierships Should the NRL retain a salary Conclusion
to Manly and Parramatta which is also cap? While the Melbourne Storm salary cap breach
considered the right decision for a competition The Melbourne Storm scandal has has highlighted the difficulty club’s face
format where not all the teams play each other highlighted that it can be difficult for clubs in enforcing the rules, the harsh penalties
in the finals series. Thus the teams beaten to enforce a salary cap, and that this club imposed by the National Rugby League
in the Preliminary Finals in both years were was willing and seemingly able to pay the should serve as a deterrent to other clubs.
arguably just as affected as the teams that players more than they were allowed under The legal challenge to this decision is
lost the Grand Finals. the salary cap. It then raises the question as based on the process undertaken by the
As a hypothetical comparison with the to whether or not the National Rugby League NRL in dealing with the salary cap breach,
Australian Football League (AFL), there were should abandon its salary cap. Breaches of a and not that the salary cap represents an
some suggestions after Ben Cousins’ drug salary cap can be difficult to detect, but what unreasonable restraint of trade. The salary
suspension, that maybe the West Coat Eagles the 2002 Canterbury Bulldogs and now the cap appears to have become an integral
should have had its 2006 Premiership taken Melbourne Storm have shown is that, given part of how the NRL operates, and is likely to
away and awarded to the Sydney Swans time, they are likely to be uncovered. What remain for the foreseeable future.
which had lost the Grand Final by one point. is required when breaches are discovered
While firstly there was no evidence Cousins is harsh penalties, and the NRL has shown Endnotes
had been taking any drugs that might have that it is willing to do that by not only imposing 1. Chris Davies, ‘Contemporary Issues in Sports Law: the
enhanced his performance in the Grand Final, fines and removing points, but by stripping Salary Cap’, (2003) 7 The Verdict 20-23. For a more in
depth discussion see Chris Davies, ‘The Use of Salary
the other issue was that the team West Coast premierships off winning teams who have Caps in Professional Team Sports and the Restraint of
beat in the Preliminary Final, the Adelaide been found to deliberately and systematically Trade Doctrine (2006) 22 Journal of Contract Law
246-247.
Crows, were in the middle of a winning breach the salary cap. It has also indicated 2. Adamson v New South Wales Rugby League (1990) 27
streak against the Sydney Swans in which it that it will also increase the number of people FCR 535.
3. See Adamson v New South Wales Rugby League (1990)
won eight of ten games. Thus, if there had employed to monitor the salary cap which will 27 FCR 535 at 561; Buckley v Tutty (1971) 125 CLR 353
at 377.
been an issue with the West Coast Eagles, also help to enforce it in future years. 4. Dean Ritchie, ‘NRL caught in Storm of cheats,’ The Daily
the Adelaide Crows were just as affected As to whether the salary cap should be Telegraph, 23 April, 2010 at 2.
5. Phil Rothfield, ‘Let the Storm start again on zero,’ The
as the Sydney Swans. What the Manly and abandoned in order to allow a team like Sunday Telegraph, 25 April, 2010 at 46.
Parramatta supporters have to accept then is the Melbourne Storm to pay players what it 6. Brad Walter, ‘More questions raised about News Ltd’s
involvement, The Sydney Morning Herald, 23 April at 30.
that while in a ‘first past the post competition’ wants to, rather than being restricted by a 7. Brad Walter, ‘CEO meeting should look back to go
there is no problem in giving the runners salary cap, it should be noted that it requires forward’, The Sydney Morning Herald, 3 May, 2010 at 24;
Stuart Honeysett, ‘NRL is second rate, says players,’ The
up the title, should the first-placed team be around $8 million annually from News Ltd, Australian, 5 May, 2010 at 48.
disqualified, it is not really feasible in a play- who owns the Melbourne Storm, in order to
off system as used by the NRL. survive financially.6 What this shows is that
In regard to the fine and loss of prize money, the Melbourne Storm does not generate
the $500,000 fine had to be imposed to act as enough income to pay players within the
a deterrent to other clubs which in the future salary cap, let alone well beyond it. While
may contemplate deliberately breaching the there are suggestions that the NRL is hopeful
salary cap. The prize money the Melbourne of increasing the salary cap substantially
Storm received during the five year period in in two years time, this is dependent
which it was deliberately breaching the salary upon it receiving significant
cap also had to be returned, as it was simply increases in income from
not fair on the other clubs for it to retain this television rights which
!
money. will be up for renewal
l
The reason why Melbourne Storm was also
a
not allowed to keep points it had already won
in the 2010 season, and not compete for
d
points in the rest of the season, was because
an
the club was still over the salary cap for this
season. Even when the Melbourne Storm
sc
and the players indicated that they would be
willing to take pay cuts in order to allow the
club to get under salary cap, the NRL would
still not allow it to compete for points.5 The
reason for this is that the Melbourne Storm
would still have the team it had acquired while
in breach of the NRL rules, even if subsequent
pay cuts brought the club within these rules.
In addition to this, the NRL is also aware that
when the Canterbury Bulldogs was found
The Verdict – Volume 2, 2010 11Breaking news
In the news...
ACCC proposes to lo
to collectively negoaltia w freelance journa
te with publishers lists Is the burqa ban a breach of
religious rights?
The Australian Co
mpetition and Co The Australian Lawyers Alliance (ALA)
(ACCC) announce nsumer Commiss
d it has issued ion seems to think so. After South Australian
proposing to gran a draft determinatio
t authorisation to n Senator Cory Bernardi called for the
and Arts Allianc the Media Entertai
e to collectively nment banning of burqas across Australia, the
engagement of negotiate the ter ALA issued a release stating that such
freelance journali ms of
Limited, ACP Ma sts with Fairfax Me a move is a breach of religious freedom
gazines Ltd, Ne dia
Magazines. ws Limited and and a prime example of why Australia
Pacific
The MEAA propos needs better human rights protections.
es to negotiate ALA director, Mr Greg Barnes said
freedom to contrac minimum rates of
t with other media pay,
or ganisations, and oth everyone should have the right to
contractual terms er
such as copyright express their religious beliefs, not just
“While the publish and moral rights.
ers have not supp politicians who were known to parade
under the proposed orted the applica
authorisation they tion, their faith before the media to shore
whether to negotia remain free to choo
te with the MEAA se up votes with the politically dominant
individually,” ACCC or deal with journ
chairman Graeme alists Christian culture.
In addition, MEAA Samuel said. “The government has said that
members may op
agreement and ne t out of any colle introducing a federal human rights Act
gotiate individuall ctive
The proposed au y with the publish would somehow divide the community
thorisation does no ers.
decision by freela t extend to a colle when really, what it would do is unite it,”
nce journalists to ctive
refuses to take pa boycott a publish Mr Barnes said.
rt in collective ne er if it
gotiations or for “On his blog site, Mr Bernadi also
reasons including other
a failure to reach commented that banning the burqa
The proposed au a collective agreem
thorisation simply ent. would strengthen women’s rights but
under the competi removes the legal
tion provisions of risk this is not necessarily the case. Some
1974 to the MEAA the Trade Practic
and participating es Act women may confine themselves more
to engage in colle members if they
ctive negotiations were to their homes because they don’t want
FindLaw News, Ap with the publisher to go against the conventions of their
ril 2010 s. –
religion.”
Rather than empower these women,
Mr Barnes feels that women who wear
burqas will feel more social exclusion,
and said that they only way to truly
improve the status and respect of women
was through education and community
engagement. – Media release, May 2010
12 The Verdict – Volume 2, 2010You can also read
