27 January 2021
The Department of Home Affairs (formerly the Department of Immigration and Border Protection) has been found to have interfered with the privacy of 9,251 detainees in immigration detention by mistakenly releasing their personal information.
Australian Information Commissioner and Privacy Commissioner Angelene Falk has determined a representative complaint from the asylum seekers (class members) against the department.
The Commissioner set out a process for 1,297 participating class members who made submissions and/or provided evidence of loss or damage to be paid compensation provided they have demonstrated that they suffered loss or damage as a result of the data breach.
The representative complaint followed the publication of a detention report on the department’s website in 2014, in error. The report contained embedded personal information that could identify all persons in immigration detention on 31 January 2014.
The Commissioner has ordered the department pay compensation for non-economic loss to those participating class members who have demonstrated that they suffered loss or damage as a result of the data breach, under five categories of loss or damage, depending on the severity of the impact.
Compensation for non-economic loss may range from $500 to more than $20,000 for extreme loss or damage resulting from the data breach.
Commissioner Falk said compensation for economic loss would be paid on a case-by-case basis.
“This matter is the first representative action where we have found compensation for non-economic loss payable to individuals affected by a data breach,” she said.
“It recognises that a loss of privacy or disclosure of personal information may impact individuals and depending on the circumstances, cause loss or damage.”
Commissioner Falk said she expected the compensation process to be concluded within 12 months.
The process involves:
- the department assigning an amount of compensation for each participating class member based on the submissions and/or evidence of loss or damage they provided and in accordance with a table of categories developed to reflect the claims made by class members and to assist with the calculation of compensation for non-economic loss
- the department communicating the assessment of the amount of compensation and relevant evidence to the participating class member or their representative, seeking agreement on the amount of compensation
- where the department and the class member do not agree on the assessed amount of compensation, the department may re-assess the amount of compensation, and seek agreement from the participating class member or their representative on the re-assessed amount of compensation
- to the extent that the parties are unable to agree on the category in the table into which the participating class member is assigned after re-assessment, and there is some evidence provided by each party for the divergent views, further submissions should be obtained through expert assessment, except where a participating class member has been non-responsive. The department may also refer a matter for expert assessment at any time following preliminary assessment.
The Commissioner will declare the amount of compensation payable for any claims that remain unresolved at the conclusion of the process.
Information about the determination will be published in 21 languages to ensure that participating class members are properly informed of the process for assessing and finalising their claims.
Read the determination