22 October 2014

Identities

'Religion as Identity' by Avigail Eisenberg, a paper for delivery at the 2014 Annual Meeting of the APSA, examines 
the shift in how religious freedom is understood as a matter of protecting individual choice to thinking about it as a matter identity. According to the choice approach, the state must protect the individual’s freedom to choose but it cannot be expected to bear the costs of the religious choices citizens make. The identity approach treats the claims individuals and groups make about their religious commitments as nonnegotiable facts rather than choices and considers the failure of the state to protect these commitments as unjust because it exposes the individual to disrespect and disadvantage, and stigmatizes and excludes them from full membership in the polity. This paper examines the political context in which the identity approach has emerged in the last 50 years. It then examines three implications for protection of religious freedom of this shift from choice to identity. Such a shift 1) enhances the capacity of courts to address claims of historical injustice 2) leads courts to focus on the religious practices at a group rather than an individuals level and 3) increases the pressure on courts to assess the authenticity of religious beliefs and practices. These implications lead to significant challenges for public institutions, which are discussed in the final section of the paper.
 Eisenberg comments that
In the last 50 years, one of the most significant changes to the protection of rights in western democracies has occurred due to a shift in the approaches taken in the public sphere to religious freedom. Whereas religion was once treated as a matter crucial to individual freedom to choose one’s most deeply held beliefs and to follow one’s conscience, it is now increasingly viewed as an un-chosen identity similar to culture or ethnicity, which must be accommodated in order to treat people fairly. While ‘choice’ and ‘identity’ are not mutually exclusive perspectives, what has been referred to as the choice and the identity approaches in jurisprudence1 have different political aims, impose different obligations and pressures on political institutions, and motivate distinctive ideas about the nature of citizenship and the public sphere.
Perhaps the greatest benefit of a shift from choice to identity is that it has provided religious groups with a better opportunity to present arguments about historical and group-based injustice, which are arguments easily ignored when religious freedom is understood primarily as a means to protect individual choice. Whereas the choice approach focuses on restrictions that limit individual freedom to choose their religious commitments and manifest their chosen practices, the identity approach treats religious commitments as part of a person’s identity and therefore as a non-negotiable feature of a person which the state must respect in order to treat people as equals. According to the identity approach, states that restrict religious practices risk placing citizens in the impossible position of being true to their deepest religious convictions or having access to the benefits of citizenship.
This paper builds on a distinction found in legal scholarship between the choice and identity approaches to religious freedom3 to explore the benefits and drawbacks of each approach to the democratic practices of western states. I begin by exploring the tension between these two approaches in recent legal debates and decisions about freedom of religion in Canada, the United States and Europe, and then examine some consequences that this tension on public decision-making and public institutions, especially courts. As the paper shows, the distinction between the choice and identity is by no means seamless or uncomplicated. In most cases, both matters of choice and identity are at stake and judges usually disagree about which is the best approach to follow in resolving difficult cases. The aim here is to explain what this tension looks like today, and to examine the implications and risks that follow from it.
Eisenberg concludes
Choice and identity represent different frameworks for public decision making about religious freedom and these frameworks illuminate different kinds of injustice that are associated with limiting religious freedom. On my view, both frameworks are imperfect. Both frameworks operate on the basis of a partial fiction about religious commitment; both involve using the law, which is at best a blunt instrument, to situate and resolve conflicts about religion, and each distorts claims or leads to serious risks, including risks to the groups that advance claims of injustice in the first place. That said, the application of these frameworks in real world settings helps to illuminate some of the challenges that courts and other public institutions confront in deciding cases about religious freedom.
Whereas the observations here do not provide adequate guidance about how conflicts about religious freedom ought to be decided, they point to some interim conclusions that might be helpful when considering how best to resolve conflicts. First, whereas the risks of an identity approach are serious, the limitations of the choice approach have become impossible to ignore. For example, state policies that ban veils amongst public employees, or favour religious symbols on school walls, are the targets of criticism today, in large part, because they are viewed as buying into the myth that individuals are free to choose their religious commitments and should be liable for the consequences of their choices. Even if the identity approach does not inform the majority’s decisions in most legal cases, it increasingly informs the way in which publics respond critically to these decisions.
Second, the strategic and often deeply political ways in which religious freedom is defended in the public sphere can obscure internal group pluralism yet, a sociologically realistic approach to religious commitment may be unsuited to advancing a convincing case for rectifying injustice towards a group, and this fact is the source of a dilemma for many groups that have just grievances against state policies. As the identity approach shows, the most convincing case for tracking injustice sometimes creates an incentive for groups to generalize and even exaggerate the importance and role of their practices.
Finally, diversity arises from our distinct perspectives, which are, in large part, the product of distinctive group histories and the experiences and struggles that inform these histories. Today, the expectation is that democratic institutions, including courts, should be prepared to recognize these distinctive group standpoints and the struggles that have informed them. As Rawls cautioned, without recognizing this deep diversity, we are left with our ‘mutual suspicions and hostilities’ based on false suppositions that “our differences are rooted solely in ignorance and perversity, or else in the rivalries for power, status, or economic gain.” This means that sometimes courts must assess evidence about the role and significance of a religious practice even if doing so places onerous demands on them because the alternative to recognizing different conceptions of the world presents even greater challenges.

Drag

'Don't Be a Drag, Just Be a Queen – How Drag Queens Protect their Intellectual Property without Law' by Eden Sarid considers intellectual property in travesti.
The paper is an empirical study of the way drag queens protect their intellectual property without reverting to formal intellectual property law. It identifies that substituting for the law is a double-layered social norm system devised by the queens in which the creators (the queens) as well as the users of the domain influence its norms and enforcement. The paper outlines the incentives that queens have for creating drag; the unique social structure and the distinctive subject matter of the domain; and the special relationships that the queens have with their audience. It holds, that this structure allows for the creation of a well tailored and functioning social norms system. The paper delineates the reasons why intellectual property law cannot accommodate for the queen's creations; and it presents the norm system the queens developed in order to prevent appropriation. The paper outlines the advantages of the social norms system – a structured, better tailored and flexible ordering regime; as well as possible disadvantages such as lack of IP policy and concerns regarding powerful guilds blocking creativity. The paper also addresses the idea of a creative domain that wishes to challenge law, rather than become a part of it. The paper concludes that the drag domain holds important lessons for the general intellectual property discourse.
Said comments
As the lights are dimmed, Dame Shirley Bassey's Get the Party Started starts playing; from behind the curtains the Dame's (almost perfect, though a bit extravagant) lookalike appears and indeed gets the party started. By the end of the evening the performer, a drag queen, changed at least five wigs and eight dresses, changed makeup several times, and performed eight different choreographic routines. An enormous amount of time and intellectual labor was invested in finding the best songs for the show, devising the best dance moves and perfect lip-sync, matching the perfect dress and wig, and fitting the exact make-up. Inevitably, the fruit of this intellectual labor – the drag show, is at risk of being appropriated as a fellow queen may easily copy the moves and costumes of the original performer, and put on a rival show of her own. One would assume that if such a scenario was to happen, a lawsuit against the appropriator, on the grounds of copyright infringement would soon follow. However, drag queens do not revert to copyright law, or any other formal legal course of action. The reason is, apparently, because copyright law fails to offer drag queens an effective way to protect their intellectual creations, but a different ordering system does.
Common intellectual property (IP) wisdom would have us thinking that in such a case the creative domain of drag performances ("the drag domain") is destined to become a creativity wasteland, since creators would not be able to recoup adequate rewards for their creation and thus refrain from investing time and effort in the first place. Nevertheless even without formal legal regulation, the Israeli drag domain is thriving, with more shows and more queens than ever before. This article aims to figure out how this happens, and what the lessons this phenomenon might hold for IP theory and policy.
The drag domain is not alone. Recent studies examined other domains of intellectual creativity that flourish without (or with only a low level of) IP legal protection, what we might call extra-legal domains. Scholars explored fashion, stand-up comedy, graffiti, high cuisine, magic performances, tattoos, typefaces and even roller derby pseudonyms, to name just a few. The main endeavor of the scholarly literature on extra-legal domains was to explain how the domains flourish despite lack of (or minor) legal regulation. The answer that has thus far surfaced suggests that the extra-legal domains substitute for the legal regulation (i.e., legal protection) by reverting to social norms which are usually practiced amongst the cadre of creators (or, in a few cases, a fashion cycle). Here I shall call them intra-social norms.
Based on a series of extensive interviews with Israeli drag queens, as well as a few interviews with owners of venues in which the drag performances take place, this study suggests that the drag domain, like most other extra-legal domains, extensively relies on an intra-social norm system to regulate the protection of its participants' intellectual creations. However the drag domain contains yet a second layer of social norms as additional means of protection. Whereas the drag queens themselves practice the first layer of protection, namely the intra social norms, it is other players in the drag scene who practice the second layer of social norms. I shall call this second layer – correlated-social norms.
The intra-social norms, as well as the correlated social norms that regulate the drag domain jointly create what we might call the drag social norm system – a normative system, based on social ordering, aimed at protecting drag queens' intellectual creativity. As I discuss later on, the drag norms system follows some of copyright law's principles such as norms against appropriation and norms regarding attribution. However, the drag norm system also differs significantly. For example, the drag norms provide protection for concepts and ideas, seem to present no fair-use style qualifications to ownership, and confer much shorter ownership terms. This norm system has developed a well operating enforcement mechanism, based, both on intra and correlated social enforcement.
Building on the observations derived from the empirical study of the Israeli drag domain, this article focuses on the question of what makes the drag domain's social norm system function so well. I suggest that the social norms' ability to reflect the creators' incentives for creation; to consider the different users' role in the regulation of the domain; to reflect the unique social and physical environment of the drag domain; to produce modular sanction and ownership as well as duration mechanisms; to consider the identity of the infringer(s); and the ability to change and adapt easily – are the reasons that this domains functions so well and is ever so abundant. In short – the drag norms being a well tailored and flexible system (vis-à-vis copyright law being a uniform, rather rigid system). However, the study also suggests some disadvantages to the drag domain's social norms system. Thus, I discuss also this system's drawbacks such as lack of ability for impartial policy makers to dictate limitations and exceptions; the propertization of ideas; and mob justice.
The article concludes that the study of the drag domain makes a strong case for social ordering in IP. I suggest that the drag domain challenges the common conception according to which lacking legal regulation a creative domain is destined to a market failure. The study of the drag domain, the article concludes, suggests that we should be cautious when we examine the possibility of juridification of socially regulated creative domains. The article accentuates the importance of considering all the individuals that are part of the drag domain's regulation. And that the ideas, the messages, that a creative domain wishes to convey as such must also be taken into consideration. While I claim that IP policy makers should consider these factors; this does not imply that social ordering is necessarily better than legal ordering, but rather that it is an option that must be thoroughly considered in the IP policy discourse.
The article progresses in several stages. Part I sets the scene – it explicates the term drag queen, gives a short historical background, and outlines the structure of the drag domain, including delineating its subject matter and the queens' incentives for creation. Part II explains why copyright law and other IP laws fail to protect the queens' intellectual creations. Part III details the main empirical findings; it describes the drag domain's set of IP norms, namely norms against appropriation and moral norms of attribution. Part IV addresses the question of what makes the drag domain's social norm system function well, and what its possible downsides are. It also explores the ideas and message the drag domain as such wishes to convey, and the meaning of this with regards to the IP discourse. Part V concludes by suggesting that the drag domain offers important lessons for the IP world.

20 October 2014

Foreign Fighters Bill report

The Parliamentary Joint Committee on Intelligence & Security report on the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (Cth) - following a lightning consultation - features the following recommendations in 213 pages  -
R1 The Committee recommends that the Attorney-General amend the Bill  to remove the ability of ‘members’ or ‘part-time senior members’ of the Administrative Appeals Tribunal to be eligible issuing officers for a delayed notification search warrant.
R2  that the Attorney-General amend the Bill to reduce the extension of a notification period for a delayed notification search warrant without requiring Ministerial authorisation from 18 to 12 months.
R3  that additional exemptions be included in the offence provisions relating to disclosure of information on delayed notification search warrants in proposed section 3ZZHA of the Bill to explicitly enable:
  • disclosure of information in the course of obtaining legal advice, 
  • disclosure of information by any person in the course of inspections by the Commonwealth Ombudsman, or as part of a complaint to the Commonwealth Ombudsman or other pro-active disclosure made to the Commonwealth Ombudsman, and communication of information by Commonwealth Ombudsman staff to the Commonwealth Ombudsman or other staff within the Office of the Commonwealth Ombudsman in the course of their duties.
R4  the Attorney-General amend the Explanatory Memorandum of the Bill to confirm that the Commonwealth Director of Public Prosecutions must take into account the public interest, including the public interest in publication, before initiating a prosecution for the disclosure of information relating to a delayed notification search warrant.
R5 Whilst there were differing views within the Committee, the Committee recommends that the Attorney-General further clarify the meaning of the terms ‘encourage’, ‘advocacy’ and ‘promotion’ by amendment to either the  Bill  or its Explanatory Memorandum in light of the evidence provided during the Committee’s inquiry.
R6   The Committee recommends that the Attorney-General amend the Explanatory Memorandum of the Bill  to clarify the meaning of ‘promotion’ in relation to statements of support for the objectives or activities of a terrorist organisation as defined by the Criminal Code.
R7  that the Attorney-General review all current listings of terrorist organisations under the Criminal Code to determine whether additional names or aliases should be added to any listings.
R8  that the Attorney-General notify the Committee of any proposed Regulation to alter the listing of a terrorist organisation by adding or removing a name or alias. The Committee also recommends that it have the power to determine if it wishes to review any proposed changes to listings.
R9  the Government consider requiring that a control order can only be based on a foreign conviction where the conduct giving rise to the conviction would constitute a terrorism related offence in Australia.
R10 The Committee notes that the Attorney-General’s Department and the Australian Federal Police have flagged the possibility of further enhancements to the control order regime given ongoing examination of the application process and purposes for which a control order can be sought. Should further changes be proposed, the Committee recommends that these amendments are referred to this Committee with appropriate time for inquiry and review.
R11  The Committee recommends the  Bill  be amended:
  • to ensure that a preventative detention order is only able to refer to a description in circumstances where the person’s true name is not known and not able to be determined based on reasonable inquiries. 
  • to enable a preventative detention order to refer to an alias (as well as, or instead of a description) instead of a name where the person’s name is not known and not able to be determined based on reasonable inquiries.
The  Bill be amended so that where a description is included in the preventative detention order, it has sufficient detail so as to identify beyond reasonable doubt the person to whom it applies.
R12  the existing preventative detention order regime be amended to specify that where the Ombudsman is required to be notified of certain events by the Australian Federal Police, this notification is required to take place as soon as is reasonably practicable.
R13  the Bill be amended so that the following powers sunset 24 months after the date of the next Federal election:
  • control order regime in Division 104 of the Criminal Code Act 1995  (Cth)
  • preventative detention order regime in Division 105 
  • the stop, search and seizure powers relating to terrorism offences in Division IIIA of the Crimes Act 1914 questioning and questioning and detention warrant regime in the Australian Security Intelligence Organisation Act 1979 (Cth).
The Intelligence Services Act 2001 (Cth) be amended to require the Parliamentary Joint Committee on Intelligence and Security to complete a review of each of the powers listed above 18 months after the next Federal election.
The  Independent National Security Legislation Monitor Act 2010 (Cth) be amended to require the INSLM to finalise a review of the operation of each of these powers 12 months after the next Federal election.
R14  the functions of the Parliamentary Joint Committee on Intelligence and Security be extended to encompass the counter-terrorism activities of the Australian Federal Police, including, but not limited to, anything involving classified material.
R15  the definition of ‘subverting society’ in proposed section 117.1 of the Criminal Code be replaced with a cross-reference to the conduct contained in the definition of ‘terrorist act’ in section 100.1 of the Criminal Code.
R16  the Attorney-General consider amending the definition of ‘engaging in a hostile activity’ in proposed section 117.1 of the Criminal Code to constrain it to conduct that would be considered to be a ‘serious offence’ if undertaken within Australia. The definition of ‘serious offence’ for the purposes of this section should be made in consideration of other comparable areas of Australian criminal law.
R17  the Attorney-General remove from, or more specifically define, acts prejudicial to the ‘international relations’ of Australia in the definition of ‘prescribed organisation’ contained in clause 117.1(2) for the proposed foreign incursions and recruitment offences.
R18 the proposed subsection 119.3(2)(b), which explicitly enables the Minister to declare an entire country for the purposes of prohibiting persons from entering, or remaining, in that country, be removed from the  Bill .
R19   that the  Bill  be amended to insert a clause that enables the Parliamentary Joint Committee on Intelligence and Security to conduct a review of the declaration of each area made under proposed section 119.3, within the disallowance period for each declaration. The clause should be modelled on the existing subdivision 102.1A of the Criminal Code in relation to the listing of terrorist organisations.
20 If legislated, the Committee recommends that subclause 119.2(6), relating to the proposed offence for entering, or remaining in, a declared area, sunset two years after the next Federal election.
R21  the Intelligence Services Act 2001 (Cth) be amended to require the Parliamentary Joint Committee on Intelligence and Security to complete a public inquiry into the ‘declared area’ provisions in clauses 119.2 and 119.3 of the  Bill , including the list of ‘legitimate purposes’, 18 months after the next Federal election.
The Committee further recommends that the Independent National Security Legislation Monitor Act 2010 (Cth) be amended to require the Independent National Security Legislation Monitor to review and report on the operation of the ‘declared area’ provisions 12 months after the next Federal election.
R22 the proposed section 27D of the Foreign Evidence Act 1994 (Cth), which currently applies only to public officials and persons connected to public officials, be broadened to apply in circumstances where any person has directly obtained material as a result of torture or duress.
R23  the Government broaden the definition of ‘duress’ in proposed Part 3A of the Foreign Evidence Act 1994 (Cth) to include other threats that a reasonable person might respond to, including threats against a person’s assets, personal associates or other third parties.
R24 the proposed Part 3A of the Foreign Evidence Act 1994 (Cth) be amended, based on section 165 of the Evidence Act  1995 (Cth), to require courts to provide appropriate direction to juries, where necessary, about the potential unreliability of foreign evidence admitted under Part 3A.
R25   the Attorney-General amend the Explanatory Memorandum to make it clear that the definition of ‘politically motivated violence’ must be read with reference to the opening words in the definition of ‘security’ in section 4 of the Australian Security Intelligence Organisation Act 1979 (Cth) .
R26 the proposed subsection 22A(2) of the Australian Passports Act 2005 (Cth) and proposed section 15A of the Foreign Passports (Law Enforcement and Security) Act 2005 (Cth) be amended so that the Director-General of ASIO or a Deputy Director-General must suspect on reasonable grounds the factors necessary to apply for the suspension of travel documents. 
R27  the ability of the Foreign Affairs Minister to delegate the power to suspend a travel document be limited to the Secretary of the Department of Foreign Affairs and Trade.
R28   the  Bill  be amended to require the Attorney-General or Minister for Justice to conduct:
  • a review of the decision to issue a certificate under paragraph 38(2)(a) of the Australian Security Intelligence Organisation Act 1979 (Cth) or proposed subsection 48A(4) of the Australian Passports Act 2005 (Cth) within 12 months of issuing that certificate; and 
  • ongoing reviews every 12 months for the time period the certificate remains active. 3 Schedules 2 to 7
R29  the  Bill  be amended to require the Attorney-General to make a decision to issue a security notice ‘on reasonable grounds’, having regard to:
  • whether there are reasonable grounds to suspect that a person is, or will be, directly involved in activities which are prejudicial to security (with consideration given to ASIO’s security assessment); and 
  • the likely effect of the cancellation of welfare payments on any dependents and what alternative arrangements might apply.
R30   the  Bill  be amended to require the Attorney-General to conduct:
  • an initial review of the decision to issue a security notice within 12 months of making that decision; and 
  • ongoing reviews every 12 months after for the time period the security notice remains active.
R31 Unless the Attorney-General is able to provide to the Parliament further explanation on the necessity of the proposed definition of ‘serious Commonwealth offence’ for the purposes of the Customs Act 1901 (Cth) and how it would enable a greater role for Customs in dealing with national security threats or terrorist activity, the Committee recommends that the definition be removed from the Bill .
R32  that the allowable period of detention by a Customs officer without notification to a family member or other person be extended from 45 minutes to two hours, rather than four hours as proposed in the Bill. The Committee notes that this does not deny a Customs officer’s power to refuse contact beyond this period on grounds of national security, security of a foreign country, safeguarding law enforcement processes or to protect the life and safety of another person.
R33  that information on the frequency of the use of Customs detention powers is included in the Department’s annual report. Further where a Customs officer exercises the power to refuse contact with a family member or other person on the grounds of national security, security of a foreign country, safeguarding law enforcement processes or to protect the life and safety of another person, then notice of this should be provided to the Ombudsman within seven days.
R34  that the Privacy Commissioner undertake a Privacy Assessment of the data collected and stored by the Department of Immigration and Border Protections and Customs, and report to the Attorney-General by 30 June 2015, with specific regard to the collection, storage, sharing and use of that data by the government agencies within the remit of the Commissioner’s jurisdiction.
R35  that the Bill be amended to remove the ability to prescribe the collection of additional categories of biometric information within the Migration Regulations. Should this information be required by relevant agencies to ensure Australia’s border security, further legislative amendments should be proposed by the Government and referred to this Committee with appropriate time for inquiry and report.
R36 the Government consult with the Privacy Commissioner and conduct a privacy impact statement prior to proposing any future legislative amendments which would authorise the collection of additional biometric data such as fingerprints and iris scans.
Recommendation 37 is that
The Committee commends its recommendations to the Parliament and recommends that the Bill be passed.
The Committee comments that
The inquiry was referred to the Committee by the Attorney-General on 24 September 2014. The Chair of the Committee, Mr Dan Tehan MP, announced the inquiry by media release on 25 September 2014 and invited submissions from interested members of the public. Submissions were requested by 3 October 2014.
The Committee received 46 submissions, 10 supplementary submissions and two exhibits from sources including government agencies, legal, community and civil liberties groups and members of the public. A list of submissions and exhibits received by the Committee is at Appendix A. [disclosure: I made a submission]
The Committee held three public hearings, one private hearing and one private briefing in Canberra on 2 October, 3 October and 8 October 2014. A list of hearings and the witnesses who appeared before the Committee is included at Appendix B.
Both the Inspector-General of Intelligence and Security and the Commonwealth Ombudsman appeared before the Committee and gave evidence that they have sufficient authority to oversight the new powers in the Bill. These agencies are likely to require more resources to fulfil their expanded role. As recommended in the Committee’s previous report, the position of the Independent National Security Legislation Monitor should also be urgently filled.
Copies of submissions received and transcripts of public hearings can be accessed on the Committee website at www.aph.gov.au/pjcis. Links to the Bill and the Explanatory Memorandum are also available on the Committee website.
Timeframe for the inquiry
Nearly every submission to the inquiry commented on the short timeframes. The intensive nature of the inquiry and the short timeframes placed significant demands on the Committee. While the Committee recognises and understands that this resulted from exceptional circumstances, it would have been preferable if more time had been available for the inquiry.
The Committee notes that a number of the measures in the Bill are derived from recommendations in earlier reviews or have formed part of community consultations conducted by the Attorney-General’s Department. The Bill also proposes a number of necessary and urgent measures to respond to threats to Australia’s national security and this has necessitated an expedited process.
This report, while making a number of recommendations to amend the Bill, is designed to inform the next stage of debate which will take place in the Senate and House of Representatives. In some instances the Committee has recommended amendments to the Bill. In other instances the Committee has determined that measures in the Bill require more detailed explanation and has requested that the Attorney-General provide additional information to assist debate of the Bill.
The provisions of the Bill were intensely debated and there were a variety of views expressed within the Committee. The Committee expects the Bill will be subject to continuing debate in the Parliament and the community.
It is the Committee’s firm view that for the third tranche of proposed legislation, a longer timeframe will be required to deal with the complexity of the legislation and allow sufficient time for public consultation. Report structure

19 October 2014

Republics

'The Ultra-Minimalist Republic: A Roadmap' by Helen Irving in Benjamin Jones and Mark McKenna (eds) Project Republic: Plans and Arguments for a New Australia (Black Inc, 2013) 155-165 argues
The goal of an Australian republic, once popular, and almost achievable, has receded in the fifteen years since the failure of the 1999 republic referendum. The issue, however, will not go away forever. As referendums are in the air – including on the constitutional recognition of indigenous Australians – it is worthwhile revisiting the republic question, and asking: what are the minimal constitutional changes that are needed to achieve a republic and that, against the record of Australian referendums, are likely to have any chance of success? This article offers an overview of the relevant constitutional landscape.

Nauru Data Breach

The Guardian reports
The personal details of hundreds of asylum seekers on Nauru have been stolen in a second major data breach within Australia’s immigration detention system. 
At least two hard drives, not password-protected and containing the personal details of hundreds of asylum seekers, including children, have been stolen from detention camps this year. 
The sensitive information stolen includes detainees’ complete personal details and case files, medical histories, as well as their protection claims detailing why they felt forced to leave their home country to claim asylum in Australia. 
The stolen files also contain case worker notes on detainees, including mental health and behavioural issues, complaints about treatment and allegations of abuse, and the minutes of “vulnerable minors meetings” where the issues faced by children in detention were discussed. 
None of the information has been recovered after several months. 
Guardian Australia understands the asylum seekers have not been told their personal information has been stolen.
Never fear
A manager from Wilson Security promised to review security in response to the thefts

18 October 2014

IGIS

The latest annual report [PDF] by the Inspector-General of Intelligence & Security (IGIS) under s 35 of the Inspector-General of Intelligence and Security Act 1986 (Cth) is now online.

The report states
Under the IGIS Act, the IGIS can conduct a formal inquiry into a matter based on a complaint, of the IGIS’s own motion, or in response to a ministerial request. The Act establishes certain immunities and protections and provides for the use of strong coercive powers in such inquiries. These include the power to compel the production of information and documents, to enter premises occupied or used by a Commonwealth agency, to issue notices to persons to attend before the IGIS to answer questions relevant to the matter under inquiry, and to administer an oath or affirmation when taking evidence.
When coercive powers are used, the IGIS Act provides protections to people who have given the OIGIS information. Those compelled to give information are protected from any penalty under Commonwealth or Territory law that would ordinarily arise from disclosing that information. The responsible minister is advised when the IGIS begins an inquiry into a particular agency, and is also advised of any conclusions or recommendations arising from the inquiry. 
The IGIS also provides opportunities for ministers, agency heads and affected individuals to comment during the course of an inquiry. During 2013–14 I completed three inquiries that were carried over from the previous reporting period. Details of these are set out below. A new inquiry was initiated following on from one of these inquiries and remained open at the end of the reporting period. I will report on my conclusions and recommendations from this inquiry in my annual report for 2014–15.
Inquiry into the attendance of legal representatives at ASIO interviews
The 2012–13 Annual Report noted the progress of an inquiry following a complaint alleging ASIO officers had made arbitrary decisions regarding the attendance of legal representatives at security assessment interviews. My preliminary inquiries identified some inconsistencies between ASIO records and those of the complainant, as well as potential communication issues between ASIO and Immigration. Consequently, I decided to initiate an inquiry into the specific complaint, and to matters relating to ASIO interviews more broadly.
In conducting the inquiry, I considered a range of ASIO policy documents and records, including records of interviews other than those in the original complaint, and interviewed a number of ASIO staff. I also obtained statements from several legal representatives who had attended, or attempted to attend, ASIO interviews with their clients.
I found that ASIO’s internal guidance was both sound and appropriate, and does not preclude the attendance of legal representatives at ASIO interviews. However, ASIO has discretion not to interview a person in the presence of a particular lawyer if it believes the presence of the lawyer would be counterproductive to the conduct of the interview. As such, I concluded that the attendance of legal representatives should be considered on a case-by-case basis, with the default position to allow such attendance.
I found that the attitudes of individual officers, combined with the process established by ASIO and Immigration to arrange interviews, strongly discouraged the attendance of legal representatives. In addition, ASIO differentiated between legal representatives and migration agents, precluding migration agents from attending interviews altogether.
This inquiry led to a number of recommendations. Specifically, ASIO should: u work with Immigration to ensure arrangements for visa security assessment interviews facilitate the attendance of legal representatives u improve training in, and staff awareness of, internal policy relating to the potential presence of lawyers at visa security assessment interviews u clarify the status of any third party wishing to attend a visa security assessment interview to ascertain if they are the interviewee’s legal representative, and further consider affording migration agents the same status as lawyers, with their attendance being addressed on a case-by-case basis u improve guidance to officers in relation to undertakings of confidentiality. ASIO agreed to these four recommendations. I also noted in the report that, in my view, visa applicants should be clearly advised that interviews with ASIO are voluntary. A fifth recommendation was made to adjust the current guidance for staff. This recommendation and some supporting text was afforded a national security classification by ASIO and cannot be publicly released. ASIO agreed, in part, to this recommendation. The inquiry report is classified but a public abridged version is available on the IGIS website. 
At the end of the reporting period ASIO provided advice about the implementation of the recommendations:
  • In March 2014, after consultation between ASIO and Immigration, the advice provided by Immigration to visa security assessment interviewees was revised to state that the interviewee is entitled to bring a legal representative. 
  • ASIO has updated guidance to staff, training and policies relating to visa security assessment interviews. In particular, shortly after the end of the reporting period ASIO finalised a policy on visa security assessment interviews. Training and guidance to staff now reflect the policy position that visa security assessment interviews should commence without efforts to discourage the attendance of a legal representative. 
  • ASIO’s new policy and training requires interviewing officers to clarify the role of a third party seeking to attend a visa security assessment interview to ascertain whether they are the interviewee’s legal representative. The presence of migration agents at a visa security assessment interview is considered on a case-by-case basis. 
  • Revised guidance about confidentiality undertakings addresses the concerns raised in the inquiry.
Inquiry into the management of the case of Mr E
Last year I commenced an inquiry at the then Prime Minister’s request into the way that the Australian Federal Police (AFP), Immigration and ASIO handled the case of a particular Egyptian asylum seeker, ’Mr E’, who presented complex security issues and, more generally, the management by Australian government agencies of complex security cases.
The purpose of the inquiry was not to establish whether the identified individual posed a threat to security but rather to look at whether the relevant agencies had, and followed, appropriate procedures to identify, assess and manage any such threat.
I completed this inquiry and provided the report to the Prime Minister in January 2014. The inquiry report is classified but a public abridged version is available on the IGIS website.
The inquiry found that, although ASIO held information that might have caused it not to clear the individual for community detention, ASIO’s security assessment processes at that time did not include consideration of that information. Different areas of ASIO dealt with the potential match to alerts connected to the Interpol red notice and the community detention checks, and the two areas did not communicate effectively with one another.
Immigration lacked awareness of the types of security checks ASIO conducted and it is not clear that relevant ministers received advice about the rigour of the checks. Within ASIO, guidance provided to staff was inadequate. Operational staff misunderstood the intentions of ASIO’s senior executive and the process of checks conducted differed from that approved by the ASIO executive.
The inquiry found that Immigration made decisions on detention arrangements without a full appreciation of all relevant information. The AFP gave advice to Immigration over a period of time but there was no formal framework for such advice. Information held by separate parts of Immigration was not shared or interpreted consistently. ASIO provided no information to help Immigration assess or manage any detention risks.
The inquiry also found deficiencies in recordkeeping, particularly in Immigration. Key procedures and arrangements between mmigration and ASIO were not well documented. The report made a number of recommendations, primarily to Immigration. In summary these were:
  • u Immigration and ASIO should continue to build on recent improvements in implementing a coordinated approach to resolving potential matches to national security alerts and document agreed procedures. 
  • Immigration should develop procedures to ensure that the AFP is promptly notified of alerts for Interpol red notices. Immigration should continue to explore the feasibility of an automated system with the AFP. 
  • Immigration should access all relevant information in assessing the identity of an individual in cases that may involve national security issues and formalise arrangements to obtain identity resolution advice from the AFP. 
  • Immigration should review its procedures for conducting risk assessments in cases involving national security to ensure that those undertaking the assessment have access to relevant information and expertise, including from ASIO and the AFP. 
  • Immigration should ensure proper records are retained of a decision to place a person in a particular form of immigration detention on the basis of security concerns. 
  • Immigration and ASIO should ensure that, in the small number of cases where there are potentially national security issues, all relevant information is taken into account by Immigration when making immigration detention management decisions.
Significant changes were initiated in ASIO and Immigration prior to this case becoming a matter of public discussion. By the time this inquiry was finished, ASIO and Immigration had introduced considerably more robust security checking processes prior to community detention or the issue of bridging visas, and ASIO had published guidance for staff on how to do the checks and escalate and resolve concerns. Immigration had established a team to identify and oversight national security and serious criminality cases.
At the end of the reporting period the agencies advised me of their progress on implementing the inquiry recommendations. Immigration advised that coordination and collaboration between the Department, ASIO and the AFP had improved significantly. I was provided with details of actions taken and a copy of the Persons of interest placement operational procedures document, which guides staff regarding the placement of detainees who are of interest to law enforcement, intelligence and/or other agencies for criminal or national security matters. This document was developed in response to the inquiry recommendations.
ASIO notes that it continues to advise Immigration on significant emerging threat issues through providing adverse security assessments and discussing impending assessments where this would assist Immigration’s decision making on detention issues. Where ASIO holds information potentially relevant to Immigration’s consideration of a person’s overall visa suitability, a qualified visa security assessment may be issued. I was provided with a procedural document relating to security assessments for IMAs for whom Immigration is considering the grant or re-grant of a bridging visa, or for those being placed in community detention. This will provide formal guidance for officers in both agencies for handling referrals which potentially match national security alerts. 
The AFP advised that similar subsequent cases have seen the agency implement measures addressing the inquiry’s recommendations, including case management meetings to facilitate complete assessment and sharing of all available information among stakeholder agencies. Overall, all three agencies have made sound progress to strengthen communication and information-sharing between the agencies. Internal policies and procedures have been developed and documented to address the deficiencies highlighted in the inquiry report.
Inquiries into the use of weapons and self-defence techniques in ASIS
In April 2013, I commenced an inquiry into the use of weapons and self-defence techniques in ASIS. The inquiry was finalised in November 2013. The inquiry report is classified but an unclassified executive summary is available on the IGIS website.
The inquiry noted that overall ASIS had managed the training in and use of weapons and self- defence techniques well. Two breaches of the ISA occurred between 2004 and mid-2013, both involving the discharge of a firearm without appropriate prior approval. However, both incidents occurred within controlled weapons training environments and were not indicative of systemic issues. (I note elsewhere in this report that in the 2013–14 reporting period there were three further, similar breaches of the ISA relating to the unauthorised use of a firearm.) 
Two main concerns were identified by the 2013 inquiry. The first was in relation to delays in providing oleoresin capsicum spray and batons to some overseas Stations after this had been approved by the Minister on the basis that the weapons were necessary for the safety of staff. The inquiry found the delays were due primarily to the lack of central governance of weapons policy and procedures in ASIS. The second concern related to the consumption of alcohol. ASIS policy at the time required that a person with a blood alcohol content above zero must not be issued with or have carriage of a weapon. The inquiry found some staff misunderstanding in relation to this requirement and that ASIS did not have adequate controls in place to provide assurance that there was compliance with this requirement.
Six recommendations were made as a result of the inquiry, most relating to the governance of weapons policy and procedures in ASIS. ASIS accepted all the recommendations and by the end of the reporting period most had been implemented. A number of the recommendations were waiting on the release of revised ASIS Guidelines for the use of weapons and self-defence techniques to be fully implemented. The most significant of these guidelines are in relation to the consumption of alcohol and controls to ensure compliance. Shortly after the end of the reporting period revised Guidelines covering these issues were implemented.
In December 2013 a further more serious incident occurred overseas involving an allegedly inappropriate action by an officer of another Australian government agency towards an ASIS officer. A review of the incident confirmed that ASIS did not yet have adequate controls in place to provide assurance that a person with a blood alcohol content above zero would not be issued with or have carriage of a weapon. While no physical injury resulted, the incident had the potential to cause serious injury. ASIS’s investigation of the incident highlighted systemic issues. I was advised by the Director-General of ASIS that the investigation also revealed that there were inaccuracies in the information provided to me during the course of my 2013 inquiry. My review of the ASIS investigation report and interviews indicated other substantial discrepancies.
In June 2014, I initiated a further inquiry into the management of weapons by ASIS in that particular location to examine these issues and related matters and to review the findings of my 2013 inquiry report. Further details of the inquiry will be included in my 2014–15 annual report.

16 October 2014

Mental Health and Justice

The Victorian Auditor General's 94 page report on Mental Health Strategies for the Justice System [PDF], cited in the forthcoming book by Bonython & Arnold, comments
Good mental health is one of the foundations of a good life and a healthy society. The World Health Organisation broadly defines mental health as 'a state of wellbeing in which every individual realises his or her own potential, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to her or his community'.
Almost 50 per cent of people aged 16 to 85 years will experience one or more mental illnesses—such as anxiety, mood and substance-use disorders—in their lifetime.
These illnesses can have significant impacts on individuals and their quality of life, including impairing their mental functioning and capacity to maintain relationships. They can also cause a person to come into contact with the criminal justice system. Rates of mental illness among people interacting with police, the courts and the corrections agencies are much higher than in the community generally.
A range of criminal justice agencies will often have to manage people with a mental illness:
Victoria Police provides initial response to incidents involving people with a mental illness. It intervenes by responding to incidents, and where necessary arresting and managing people with a mental illness in police cells.
The Magistrates' Court sentences offenders—including those with a mental illness—and aims to divert them from the criminal justice system where appropriate. 
The Department of Justice (DOJ), through Corrections Victoria and Justice Health, manages and treats prisoners with a mental illness while incarcerated, while on parole, and on corrections orders.
In addition, the Department of Health (DH) sets priorities and funds mental health services that treat and manage people in contact with the criminal justice system.
While these agencies operate independently, they rely on each other when dealing with people with a mental illness. Better practice research indicates that joint planning and coordination is required where policy issues span the responsibilities of more than one agency, where agencies' responsibilities are interdependent, or where coordinating services can reduce costs and increase quality for end users.
This audit examined the effectiveness of planning and coordination for mental health across Victoria's criminal justice system, as the foundation for effective responses to people with a mental illness.
The Auditor General concludes -
The increasing incidence of people living with a mental illness in the community means that justice and health agencies are experiencing significant challenges. There are increasing interactions between people with a mental illness and agencies within the criminal justice system, and a lack of capacity to adequately respond to and manage these needs. This is particularly evident for Victoria Police and for Corrections Victoria.
Justice and health agencies recognise the importance of addressing mental health issues within the criminal justice system. All have implemented initiatives that aim to improve outcomes, but significant gaps remain. In the face of the increasing incidence of people with a mental illness interacting with the criminal justice system, a whole‑of‑system approach is required.
There is currently no overarching strategy or leadership for mental health and the justice system that focuses on improving outcomes for people with a mental illness. Where plans do exist, they are limited to agencies' own areas of responsibility, or only address parts of the justice system.
While there is evidence of agencies working together, this is neither uniform nor sufficiently coordinated across the justice system to address mental illness effectively. Further collaboration and coordination would likely enhance the overall outcomes for people with a mental illness.
Responsibility for coordinating the agencies is unclear, and there is a lack of accountability for the success or failure of responses across the criminal justice system. This is likely to further limit the effectiveness of coordination, collaboration and planning, as actions rely on individual agencies, their relationships and their ability to take a system-wide perspective.
The lack of effective planning and collaboration is inconsistent with several major strategic statements from the health and justice portfolios since 2009. These identified that justice, mental health, disability and other services such as housing, must work closely together if better outcomes are to be achieved for people with a mental illness coming into contact with the justice system.
The Findings in the report are - 
Police response and arrest interventions
Victoria Police performs a critical role responding to people with a mental illness. Its role is at the 'front end', managing incidents caused by personal crisis, behaviour suggestive of mental disorder, or the effects of alcohol and other drugs.
The nature of Victoria Police's role in responding to people with a mental illness means that it routinely interacts with the health system, hospitals and DH. As such, both it and DH need to effectively collaborate and plan to maximise outcomes for people with a mental illness.
Until recently these agencies have focused planning in their own areas of responsibility. However, they are now working towards a joint plan to develop effective responses to mental illness. This has the potential to improve outcomes for people with a mental illness, whose interaction with mental health services results from their contact with police.
The level of inter-dependence between Victoria Police and DH necessitates effective collaboration and coordination. Since 2006, both agencies have sought to engage around mental illness, but have found it difficult to resolve issues and strategically collaborate. However, since 2012 Victoria Police and DH have both taken steps to strengthen their strategic engagement, and are working towards an agreed framework to oversee and address areas of inter-dependence.
Victoria Police and DH have longstanding mechanisms to support local communication and coordination between police, ambulance, area mental health services (AMHS) and hospital emergency departments. However, Victoria Police and DH will need to devote ongoing attention to ensure emergency services liaison committees (ESLC) are effectively maintaining local coordination.
Courts-based interventions
The Magistrates' Court hears criminal charges brought by police, makes findings in relation to guilt and makes sentencing orders. Courts may also obtain mental health assessments in considering criminal cases, particularly where an accused's mental illness may satisfy the criteria under relevant legislation.
The Magistrates' Court has successfully piloted specialist courts and programs to divert offenders with a mental illness to treatment, and address the causes of their offending. The specialist courts and programs play a key role by reducing rates of imprisonment.
However, there is no current plan guiding the development of the Magistrates' Court's specialist courts and support programs for people with a mental illness - including a framework describing the role these initiatives could play if they were extended beyond their current pilot locations to operate more widely across the Magistrates' Court's 12 major regional locations.
Prior to July 2014, DOJ provided policy, project and program management support, and led inter-agency communication around the Magistrates' Court's programs. DOJ's support enabled development of the Magistrates' Court's specialist courts and support programs for mental illness. From 1 July 2014, Court Services Victoria (CSV) has taken over responsibility for the Magistrates' Court's administrative and operating support, and management of specialist courts and support programs.
There is no agency-level forum in which DOJ, CSV, Victoria Police, DH and the Department of Human Services (DHS) are able to discuss strategic issues aimed at reducing offending and improving recovery of people with a mental illness in the criminal justice system.
Police custody and prison-based interventions
Holding offenders in custody provides an opportunity to both identify and treat mental health issues. When detained in police cells, individuals are in the legal custody of the Chief Commissioner of Police and Victoria Police provides health services as part of its custodial responsibility. Prison health services provide voluntary psychiatric consulting, nursing and inpatient treatment for prisoners with a mental illness. Under the Mental Health Act 2014 compulsory mental health treatment cannot be provided in prisons.
As offenders frequently move between police cells and prisons, effectively addressing their mental illness is complex. It requires effective collaboration between Victoria Police, DOJ, DH and other corrections service providers. However, there is no integrated plan for managing offenders with a mental illness who come into contact with these agencies. Previous plans to appoint a lead provider of health services across police, corrections and courts did not progress.
Justice Health and DH are now undertaking separate, but coordinated planning for prison mental health and wider mental health services. Justice Health is preparing for an additional 75 mental health beds for men in 2017. This planning comes as indicators of under-capacity within prison and compulsory mental health facilities have been apparent for several years and have now become extreme.
DOJ and DH have arrangements to communicate around mental health at an agency level. In particular, the agencies have well-established communication around mental health through the multi-agency Justice Health Joint Management Committee.
This coordination has helped Justice Health and DH to work closely from the inception of their inter-related planning projects. However, DOJ and DH have not clarified arrangements to ensure that decisions arising from each agency's planning are coordinated and address the current delays for prisoners with a severe mental illness requiring treatment.
Community supervision and prison transition interventions
Managing prisoners with a mental illness after release from prison, or offenders on community corrections orders, is challenging. Yet it can reduce the risk of reoffending. However, it requires the offender to actively engage in treatment or other programs, and for multiple agencies to work together.
There is, however, insufficient coordination of planning among the key agencies to support offenders with a mental illness released from prison. DOJ, DH and DHS operate and plan various support and housing programs. While the agencies are starting to work together, planning is not informed by a consistent framework of objectives, or of analysis of current and future demand.
Corrections Victoria, DH and DHS do not maintain regular agency-level contact around programs for community supervision and transition from prison. Consequently, this increases the risk that the agencies will miss opportunities to improve programs and services for people with a mental illness, or they could be unaware of changes that affect their ability to fulfil their accountabilities. This is particularly the case as Corrections Victoria, DH and DHS are involved in separate reforms that affect programs relevant to people with a mental illness.
The Auditor General makes the following recommendations
That Victoria Police and the Department of Health: enhance bilateral arrangements to improve collaboration and coordination between the two agencies improve governance weakness around local service coordination with the aim of improving accountability update their joint protocol to reflect recent legislative changes.
That Court Services Victoria: establishes a planning framework for the Magistrates' Court's specialist courts and support programs that considers ways to maximise their role and outcomes for offenders with a mental illness across the state establishes strategic relationships with justice, health and human services agencies to coordinate development of its specialist courts and support programs for people with a mental illness.
That Court Services Victoria, the Department of Justice and the Department of Human Services: review the provision of housing services to identify potential efficiencies and opportunities to improve effectiveness.
That the Department of Justice and the Department of Health: prepare a joint plan for mental health facilities inside and outside prisons to guide future funding bids.
That the Department of Justice: amends the terms of reference of the Justice Health Joint Management Committee to reflect its role as a forum for agency communication and coordination.
That Victoria Police: monitors and reports the time that prisoners with a mental illness are held in police cells before transfer to the prison system.
That the departments of Justice, Health and Human Services: establish arrangements to improve coordination, collaboration and planning across the three agencies review the range of post-release and community correction programs to identify opportunities for improved effectiveness and efficiency.
The report notes that  "two recommendations do not appear in the body of the report - they are directed at the criminal justice system as a whole"
That the Department of Justice, Department of Health, Department of Human Services, Victoria Police and Court Services Victoria:
  • jointly contribute to the development of a strategy that includes processes for coordination, collaboration, apportioning responsibility and accountability, and monitoring system-wide performance 
  • provide advice to government about agency roles and responsibilities for system-wide planning, responses and performance monitoring.