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.

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

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 and Drones

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.

'The Dawn of the Age of the Drones: An Australian Privacy Law Perspective' by Des Butler in (2014) 37(2) UNSW Law Journal 434 comments

Suppose a homeowner habitually enjoys sunbathing in his or her backyard, protected by a high fence from prying eyes, including those of an adolescent neighbour. In times past such homeowners could be assured that they might go about their activities without a threat to their privacy. However, recent years have seen technological advances in the development of unmanned aerial vehicles (‘UAVs’), also known colloquially as drones, that have allowed them to become reduced in size, complexity and price. UAVs today include models retailing to the public for less than $350 and with an ease of operation that enables them to serve as mobile platforms for miniature cameras. These machines now mean that for individuals like the posited homeowner’s adolescent neighbour, barriers such as high fences no longer constitute insuperable obstacles to their voyeuristic endeavours. Moreover, ease of access to the internet and video sharing websites provides a ready means of sharing any recordings made with such cameras with a wide audience. Persons in the homeowner’s position might understandably seek some form of redress for such egregious invasions of their privacy. Other than some form of self-help, what alternative measures may be available? 

Under Australian law this problem yields no easy answer. In this country, a fractured landscape of common law, Commonwealth and state/territory legislation provides piecemeal protection against invasions of privacy by cameras mounted on UAVs. It is timely, at what may be regarded as the early days of the drone age, to consider these laws and to identify deficiencies that may need to be addressed lest, to quote words that are as apt today as they were when written over 120 years ago, ‘modern enterprise and invention … through invasions upon [their] privacy, [subject victims] to mental pain and distress, far greater than could be inflicted by mere bodily injury.