May 7, 2021

Volume XI, Number 127

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A Home Affair: Department of Home Affairs Ordered to Compensate Asylum Seekers Following Inadvertent Disclosure

As a result of a recent class action, the Department of Home Affairs has been ordered by the Australian Information Commissioner, Angelene Falk, to pay compensation to asylum seekers after the Department was found to have interfered with the privacy of 9,251 detainees.

According to a media release from the Office of the Australian Information Commissioner (OAIC), the relevant breach stemmed from February 2014, where the Department published on its website a “Detention Report”, which had embedded within it a Microsoft Excel spreadsheet containing the personal information (including full names, date of birth and period of immigration detention) of 9,258 individuals who were in immigration detention at that time.

Following a class action in which 1,297 participating members provided submissions to the OAIC, the OAIC undertook an assessment and concluded there was no reason to dispute the findings from the Commissioner’s initiated investigation and own motion investigation report that:

  1. the Department had failed to put in place reasonable security safeguards to protect the personal information that it held against loss, unauthorised access, use, modifications or disclosure and against other misuse; and

  2. the publication of personal information of the listed individuals was an unauthorised disclosure, in contravention of the then Information Privacy Principles.

Compensation will be payable to participating members who have demonstrated that they have suffered loss or damage as a result of the data breach, and range from $500 to more than $20,000 based on severity of the impact. Commissioner Falk has raised the importance of the impact of this case in being “the first representative action where the OAIC has found compensation for non-economic loss suffered by individuals affected by the data breach”.

As yet there has been no guidance provided as to how these sums are assessed which leaves a lot of uncertainty in these situations. 

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Copyright 2021 K & L GatesNational Law Review, Volume XI, Number 39
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About this Author

Cameron Abbott, Technology, Attorney, Australia, corporate, KL Gates Law Firm
Partner

Mr. Abbott is a corporate lawyer who focuses on technology, telecommunications and broadcasting transactions. He assists corporations and vendors in managing their technology requirements and contracts, particularly large outsourcing and technology procurements issues including licensing terms for SAP and Oracle and major system integration transactions.

Mr. Abbott partners with his clients to ensure market leading solutions are implemented in to their businesses. He concentrates on managing and negotiating complex technology solutions, which...

+61.3.9640.4261
Warwick Andersen Technology Lawyer KL Gates
Attorney

Mr. Andersen is a senior corporate lawyer with a focus on commercial, technology and sourcing projects. He has advised on large scale outsourcing projects, technology agreements for both vendors and customers, corporate support, privacy and telecommunications regulatory work. He has acted for government departments, large listed companies, telecommunications companies and technology suppliers.

+61-2-9513-2508
Senior Attorney

Ms. Aggromito is a senior lawyer in the lawyer in the Melbourne commercial technology and sourcing team focusing on IT, privacy and data protection.

+61.3.9205.2027
Max Evans Lawyer technology matters, Software as a Service Agreements SaaS Sydney
Lawyer

Mr. Evans is a corporate and transactional lawyer with a focus on information technology and outsourcing. He provides assistance on a broad range of technology matters, including Software as a Service Agreements (SaaS), terms and conditions for software products and platforms as well as software procurement and outsourcing projects. Mr. Evans also provides assistance with technology and privacy aspects of mergers and acquisitions transactions.

Professional Background

Prior to joining K&L Gates, Mr. Evans worked in the insolvency and bankruptcy practice of...

61-2-9513-2318
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