In an unusual couple of weeks we have been approached by a number of clients about potential scams to which they have been subjected.

Coincidentally, the Australian Taxation Office (“ATO”), on 10 April 2019, issued a daily update for Tax Professionals warning of:-

“A recent spate of robocall scams are spoofing genuine ATO phone numbers to display on caller IDs. We [ATO] will never call you threatening immediate payment or arrest for a tax debt.”

For more information on how to spot a scam or what to do if you receive one, go to the ATO website here.

Email spoofing is the creation of email messages with a forged email sender address. The intention being to mislead the recipient into believing the email address is legitimately from a known or trusted source.

Another example of spoofing recently was an email “sent” from the client’s own email address to himself. The email claimed that the client’s website, contacts and email had been hacked. The hacker claimed it had taken control of the client’s computer and computer camera. The hacker claimed that it had incriminating video and other evidence that the client had watched internet porn and unless the client paid the equivalent of $US1,000 in bitcoin to a nominated account within 48 hours, the “incriminating material” would be distributed to all contacts in the client’s email and Facebook accounts.

The client was suspicious because he did not watch internet porn on his computer (nor any other device!), nor did he have a Facebook account. The client immediately contacted his IT manager and was told it was a prolific scam and to both ignore it and contact his website and email service provider to adjust his Sender Policy Framework (“SPF”) and Domain Keys Identified Emails (“DKIM”) settings. Whilst this action cannot guarantee full protection, it will improve the website and email defences.

There are community blogs which identify common scams. But also check the following sample sites:-

• Australian Securities and Investments Scheme (“ASIC”): Scams targeting ASIC customers;
• Australian Competition and Consumer Commission (“ACCC”): Protecting yourself from scams;
• ATO: Scammers fake ATO phone numbers; and
• IP Australia: Unofficial Trademark Invoices.

By way of example, the ATO reported for the single month of January 2019:-

• 23,237 phone scam reports were officially made;
• $497,216 was reported as being paid to scammers. Payments via Google Play, iTunes and Bitcoin amounted to 83% of the total amounts paid.

In addition, Telstra’s 2019 Security Report claims that 51% of respondents who have been victims of Ransomware have paid to unlock files. The report claims 77% of Australian businesses that paid the ransom were successful in retrieving their data.

For those subject to the Notifiable Data Breach regime under the Privacy Act 1988 (Cwth), the Office of the Australian Information Commissioner (“OAIC”) issues quarterly reports. In the quarterly report of October to December 2018, the major areas of notification were caused by human error or malicious or criminal attacks or a combination of both. The top 4 sectors that reported notifiable data breaches were identical to those in the previous quarter which in order were:-

1. Health service providers;
2. Finance;
3. Legal, Accounting and Management Services; and
4. Education

This short Article provides an insight into the proliferation and increasing sophistication of scams, but also the scale of money involved. It is trite, yet important to emphasise not only ongoing updating of technological defences but ongoing training and preparation for your human resources.

Date Published: 26 April 2019

Better Boards (https://betterboards.net/) is again hosting its highly regarded Annual Conference featuring leading international and national speakers. The Conference theme is “Governance (R)evolution: Strategies for Success” and will be held on 1-4 August 2019 at the Brisbane Convention and Exhibition Centre (click here).

The Conference features a dedicated CEO’s Summit on Friday 2 August 2019 with sessions enhancing CEO thinking and exchange of experiences through round table forum participation with leading NFP professionals. For Board members there is an innovative tour on 2 August 2019. The main Conference on Saturday 3 and Sunday 4 August is directed to Board Members, CEOs and Senior Executives of NFPs over a broad range of topics. Click here to learn more about the Better Boards Conference 2019, topics and speakers.

In addition to the Conference there are pre-conference masterclass sessions on Thursday 1 August 2019. For a copy of the conference Program click here.

Better Boards connects the leaders of Australasian non-profit organizations to the knowledge and networks necessary to grow and develop their leadership skills and build a strong governance network for their organization.

Also, you can register for the Better Boards free newsletter on their website by clicking here. The newsletter contains interesting, thought provoking and practical articles from leading advisors in the NFP sector.

Recent newsletters and webinars have covered the following topics (by way of example):-

• Keeping it Simple by Emphasising Purpose
• Board Evaluation
• Directors’ Duties: Lessons from the past to guide future conduct [to read our earlier article click here]

The Better Boards website contains fact sheets (click here) with introductory comment on items such as the following:

• What is a board portal?
• What is a Deductible Gift Recipient (DGR)?
• What is the difference between a non-profit organisation and a charity?

We consider this to be the premier NFP conference in Australia and on past performance recommend it highly. The writer has been a frequent speaker at the conference on tax related topics affecting NFPs.

Date Published: 25 March 2019

The Supreme Court of Victoria (“the Supreme Court) determined in Rotary Club of Melbourne Inc v Commissioner of State Revenue [2018] VSC 699 (29 November 2018) that the Rotary Club of Melbourne Inc (“Rotary Club”) was not a body established for charitable purposes within in the meaning of section 45 of the Duties Act 2000. Therefore, the Rotary Club was not exempt from stamp duty on the purchase of real estate for office space.

This case was an appeal from the Victorian Civil and Administrative Tribunal (“VCAT”) which firstly required leave from the Supreme Court for the Rotary Club to appeal. The Supreme Court noted:-

“ In the interests of expedition and economy in terms of time and cost, this proceeding was heard as a combined or “rolled up” application for leave to appeal the Tribunal’s decision and, if leave were to be granted, the hearing of the appeal itself.”

The Supreme Court found that VCAT had not erred in law when it determined that the Rotary Club was not a body established for charitable purposes and therefore confirmed the decision of VCAT.

VCAT determined that a significant and independent object of the Rotary Club is the moral improvement of its members as they conduct themselves in their own personal, business and community lives, divorced from the activities of the Rotary Club. “The moral improvement of members, while ‘admirable and, indeed, praiseworthy’, is ‘beyond the purposes accepted by the law as charitable’.”

The Supreme Court considered that whilst the promotion of ethical standards in business and the professions may be a purpose that falls within the general law understanding of charitable purposes, the purpose must be beneficial to a sufficient section of the community. The Supreme Court held that the Rotary Club concerned itself with the conduct of its members to be of a high ethical and moral standards.

Therefore, it did not sufficiently benefit a section of the public with the improvement of ethical standards in business and the professions.

This case is a further example of not-for-profit organisations seeking traditional charitable purpose status for the purpose of state and federal revenue law.

Date Published: 1 February 2019

Bolton v Stoltenberg [2018] NSWSC 1518 found that the mere act of “liking” a defamatory post on social media sites, such as Facebook, was not enough to attract liability. Although, New South Wales Supreme Court Justice Payne added that liability could still be attracted if there is evidence to suggest that the “like” had drawn the attention of many users to the post.

The Supreme Court of New South Wales held that a series of Facebook posts about the former Mayor of the Narrabri Shire Council, Mr. Conrad Bolton, were defamatory, and awarded Mr. Bolton $110,000 in damages. This included Mr. Stoltenberg being ordered to pay $80,000 in general damages and $20,000 in aggravated damages plus $10,000 in interest. Ms. Loder was ordered to pay $10,000 resulting from a defamatory post.

This case shows the powerful influence that social media sites can have over individuals. Mr. Stephen Stoltenberg, a former town clerk who had previously maintained a professional relationship with Mr. Bolton published a Facebook page called “Narri Leaks” which he used to post his defamatory opinions about Mr. Bolton.

From 2015 to 2016, Mr. Stoltenberg published six defamatory posts about Mr. Bolton, claiming that he was corrupt and dishonest in his actions as Mayor of the Council and acted unprofessionally and corruptly in his selection process for appointing a new General Manager to Council. Furthermore, Ms. Ann Loder, who was a sitting Narrabri Councillor at the time, actively interacted with the posts, including “liking” 64 posts in the group, and uploaded a comment on a defamatory post encouraging others to “like” the post as well.

Mr. Stoltenberg attempted to argue that despite the fact that he was the author and publisher of the defamatory posts, he could not be held liable unless there was evidence that a third party had read the posts, who was not Mr. Stoltenberg or Mr. Bolten. Justice Payne rejected this argument and found that there was a plethora of evidence that the posts had been read and downloaded by many other people who were not Mr. Bolten. The Court relied in part on material published in Mr Stoltenberg’s posts and provided in his answers to interrogatories that others had read the posts.

In contrast to Mr. Stoltenberg’s liability, Ms. Loder’s liability was much harder to define. The question at hand was could “liking” of posts and encouraging others to do the same make her liable for defamatory posts.

Citing the cases Google Inc v Duffy [2017] SASCFC 130 and Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350, Justice Payne came to the conclusion that Ms. Loder’s action of “liking” a post was not sufficient to warrant liability as a secondary publisher to the defamatory material. Despite this, however, Justice Payne added that her comment on a post encouraging others to “like” the post did make her liable, as she had attracted the attention of others to the defamatory posts. She was then ordered to pay $10,000 in damages to Mr. Bolten for her comment.

This case illustrates the influence that social media can have. Cases like this encourage us to reflect on what we post and how we act on social media.

It is clear that the law is applying the principles of defamation to adapt to the new technology. In Google Inc v Duffy [2017] SASCFC 130 [see our previous articles here], the provision of a hyperlink to the defamatory material lead to liability for Google.

Similarly, In the South Australian case of Johnstone v Aldridge [2018] SADC 68 [see our previous article here] allowing defamatory posts made by others nevertheless led to liability for the host. Interestingly, in Bolton v Stoltenberg [2018] NSWSC 1518, Mr Stoltenberg was not held liable for a defamatory post made by another because Mr Stoltenberg removed the post within 2 hours.

Advice of caution in social media is well placed.

*Oliver Hamit served as an intern at Wentworth Lawyers Pty Ltd

Victor Hamit is Principal Director at Wentworth Lawyers Pty Ltd

 Date Published: 7 January 2019

In a Victorian decision delivered in Portarlington Bowls Club – Exemption (Human Rights) [2018] VCAT 1571 (11 October 2018) the Tribunal determined that the ladies of the Portarlington Bowls Club (“the Club”) could conduct a ladies only bowls tournament.

The Tribunal noted the background to the tournament as follows:-

“The Club has a long-standing tradition of holding an annual ‘Ladies Section Open Day’. The next Ladies Section Open Day is 11 November 2018 and invitations will be issued to women in local clubs. Men are not invited (the conduct). Since 2013, the Club has operated the open day competition subject to an exemption granted by this Tribunal on 18 July 2013. The Club has made an application for a further five-year exemption to enable it to continue to run the competition under section 89 of the Equal Opportunity Act 2010 (the Act).”

Section 89 of the Act permits the Tribunal to grant an exemption from any of the provisions of the Act in relation to a person or class of persons or an activity of class of activities by publishing a notice in the Government Gazette.

Section 90 of the Act requires the Tribunal, in deciding whether to grant, renew or revoke a decision to consider:-

(a)     whether the proposed exemption is unnecessary because-

(i)    an exception or exemption in the Act already applies to the conduct sought to be exempted; or

(ii)   the conduct sought to be exempted would not amount to prohibited discrimination; and

(b)     whether the proposed exemption is a reasonable limitation on the right to equality set out in the Charter of Human Rights and Responsibilities; and

(c)     all the relevant circumstances of the case.

Accordingly, the question to be determined by the Tribunal in this matter was “whether an exception already applies, primarily whether the open day constitutes a ‘special measure’ under section 12 of the Act.”

Section 12 (3) of the Act provides as follows:-

 “A special measure must-

(a)    be undertaken in good faith for achieving the purpose set out in subsection (1); and

(b)    be reasonably likely to achieve the purpose set out in subsection (1); and

(c)    be a proportionate means of achieving the purpose set out in subsection (1); and

(d)    be justified because the members of the group have a particular need for advancement or assistance.”

Section 12 (1) of the Act provides as follows:-

“A person may take a special measure for the purpose of promoting or realising substantive equality for members of a group with a particular attribute.”

The Tribunal noted:-

“…..some persons might find the use of the term “Ladies” inappropriate and might consider “Women” or “Female” more suitable. However, I consider that the term is reflective of the long tradition of the Club and of the demographic that this event serves. It is the term with which the relevant players are most comfortable and therefore the term most likely to attract players and teams to the event. Hence, I have adopted that term in these reasons.”

The Tribunal then indicated that it was satisfied with the evidence presented that:-

“…the Ladies Section Open Day provides assistance to women, particularly older women, to continue participation in bowls competitions and to develop leadership and tactical skills that they would not otherwise develop in a mixed-sex team. I am also satisfied that women, particularly older women, have a particular need in these circumstances for that assistance.

Given the declining numbers of women in the Applicant club [the Club], I consider that the continuation of the traditional Ladies Section Open Day assists in preventing further decline of female membership or, in other words, I am satisfied that the proportional loss of female membership would be greater in the absence of the single-sex competition days.”

The Tribunal further considered that the one day per year of the Ladies Section Open Day was proportionate to the purpose. The Ladies Section Open Day constituted a “special measure” and therefore an exception already applies to the conduct in these circumstances. Accordingly, an exemption is not required.

The Tribunal considered it lawful for the Club to conduct the Ladies Section Open Day as it constitutes a special measure and therefore no special exemption is required to be sought.

The Victorian Equal Opportunity & Human Rights Commission has produced a document “Equal Opportunity in Lawn Bowls – What you need to know about holding single-sex competitions” which can be found here.

Date Published: 23 October 2018