Protecting digital identity in the cloud: Regulating cross border data disclosure

Widespread use of cloud computing and other off-shore hosting and processing arrangements make regulation of cross border data one of the most significant issues for regulators around the world. Cloud computing has made data storage and access cost effective but it has changed the nature of cross border data. Now data does not have to be stored or processed in another country or transferred across a national border in the traditional sense, to be what we consider to be cross border data. Nevertheless, the notion of physical borders and transfers still pervades thinking on this subject. The European Commission (“EC”) is proposing a new global standard for data transfer to ensure a level of protection for data transferred out of the EU similar to that within the EU. This paper examines the two major international schemes regulating cross-border data, the EU approach and the US approach, and the new EC and US proposals for a global standard. These approaches which are all based on data transfer are contrasted with the new Australian approach which regulates disclosure. The relative merits of the EU, US and Australian approaches are examined in the context of digital identity, rather than just data privacy which is the usual focus, because of the growing significance of digital identity, especially to an individual's ability to be recognized and to transact. The set of information required for transactions which invariably consists of full name, date of birth, gender and a piece of what is referred to as identifying information, has specific functions which transform it from mere information. As is explained in this article, as a set, it literally enables the system to transact. For this reason, it is the most important, and most vulnerable, part of digital identity. Yet while it is deserving of most protection, its significance has been largely under-appreciated. This article considers the issues posed by cross border data regulation in the context of cloud computing, with a focus on transaction identity and the other personal information which make up an individual's digital identity. The author argues that the growing commercial and legal importance of digital identity and its inherent vulnerabilities mandate the need for its more effective protection which is provided by regulation of disclosure, not just transfer.     

The Post-Tiananmen Human Rights Issue in China–Australia Relations

The Tiananmen events of June 1989 shattered the dream of a special relationship between China and Australia, making human rights one of the major issues to be addressed in their bilateral relations. Though differences emerged, they still needed manageable and constructive linkages because both of them were fully aware that confrontation could damage their common interests in economic prosperity and regional peace and stability. Consequently, the engagement in human rights was the mutual demand and pursuit between Beijing and Canberra. By means of engagement, Canberra expected that with the growth of China's economy and reform this moderate approach would bring about to China better conditions for more progress in human rights, though it might be at a slow speed. In the process of China's post-Tiananmen evolutionary human rights diplomacy changes, Australia was one of the countries to be won over by China in facilitating its policy implementation. Admittedly, China's bilateral dialogue approach and technical cooperation with Australia and some other Western countries contributed to the successive failure of the American attempt to take multilateral actions to pass an anti-China resolution in the UN Human Rights Commission (replaced by the UN Human Rights Council in March 2006). Meanwhile, China had to take such steps as responding to concerns on rights issues raised by its dialogue partners and accepting and implementing UN human rights instruments to maintain the engagement approach. Resultantly, the process of China's engagement with Australia and other Western states in human rights is also a process of its learning how to deal with Western pressure constructively and how to improve human rights at home.     

Unfinished business: Aboriginal reconciliation and restorative justice in Australia

In this paper we report on general findings and observations in Australia and from two days of the Deliberative Poll on Reconciliation in Canberra. With hundreds of representative Australians participating, and plenary sessions broadcast nationally, it appeared that Australia was progressing on its long journey toward aboriginal reconciliation. In this paper, we apply a theoretical analysis from criminology--restorative justice--to examine the means by and the extent to which the national community conference was a restorative event. Of particular interest to this analysis are the unintended restorative outcomes, the voices heard, the dialogues on apologies, regrets and the past, future possibilities, and responsibility. Some preliminary thoughts on the future of reconciliation will be offered and a few skeptical comments made.     

Maids and mothers: Domestic servants and illegitimacy in 19th-century Australia

Historically, domestic servants have been overrepresented amongst women whose ex-nuptial pregnancy became a public “problem.” Despite such apparent vulnerability, female rescue-workers also saw domestic work as the pathway to redemption for such women. Drawing on extensive Australian data on single mothers and their children in the 19th-century, this article investigates the complex relationship between domestic service and illegitimacy. While it will argue that the overrepresentation is more apparent than real, a product of the situation of the domestic servant whose workplace was her home and whose continued employment was often dependent on maintaining high moral standards, it will also contest the viability of domestic service as a “solution” for the mother compelled to work to support her child.     

State transformation and resource politics: Australia and the regional political economy

Abstract

Although the 1994 Agreed Framework offers a solution to the North Korean nuclear crisis, many problems may prevent its successful implementation. Should the Agreed Framework break down, the United States and South Korea have indicated that they will ask Japan to join them in a trilateral economic sanctions regime.

Japanese participation would include the severance of trade and financial flows, including money sent to North Korea from Japan's ethnic Korean community. In this paper I examine this financial flow, and, finding it a valuable linkage to the North Korean economy, conclude that Japanese participation is vital for a successful sanctions regime against North Korea.

Given this, I examine whether or not Tokyo's cooperation will be forthcoming. Japan would be inclined to participate given that it has a strong interest in eliminating a regional nuclear threat. Furthermore, Japan would also feel pressure from its allies to display diplomatic leadership in the Asia‐Pacific region, as befits a country of its economic importance.

Despite these international reasons for Japanese participation, domestic factors will be likely to prevent Tokyo from joining a sanctions regime: constitutional questions, the possibility of terrorist reprisals, interest in Pyongyang's regime maintenance, concerns for the rights of Japan's ethnic Korean community, and political ties between North Korean and Japanese politicians. I find that these domestic factors will outweigh international pressures for Japanese participation, and thus conclude that in the event of a breakdown in the Agreed Framework, alternatives to a trilateral sanctions strategy against North Korea must be considered.     

Indigenous governance

The governmentality literature's focus on mentalities of rule, and its aversion to sociological analysis, tends to produce a programmatic vision of governance. From this perspective, politics appears primarily as a mentality of rule, and resistance appears primarily as a negative – as a source of programme failure. This paper explores aspects of Australian policies of self-determination for Aboriginal peoples, in order to examine ways in which resistance (in the form of indigenous governance) plays a constitutive role in the formation of rule. Government and resistance articulate, mingle and hybridize, so that resistance cannot readily be thought of as external to rule. In this way, liberalism's governmental relations with resisstance are characterized by incorporation of resistant, ‘indigenous’, governances. In turn, this is a source of its innovativeness and flexibility, becoming part of its strategy of government at a distance. However, this incorporation creates tensions and contradictions within the liberal project itself, instabilities which cannot be reduced to the status of external sources of programme failure.     

An analysis of traditional rules applied by Australian courts to establish personal jurisdiction and their application in e-commerce

This article analyses the jurisdictional principles employed by Australian courts in establishing personal jurisdiction in traditional settings and its extension to e-commerce cases. The Australian courts apply the court rules to exercise personal jurisdiction over defendants. The article discusses these rules relating to serving process within and outside Australia and jurisdiction based on the submission of the parties. The adequacies of principles like forum-non-conveniens, forum selection clauses which are vital in the personal jurisdiction inquiry are analysed. The unique High Court decision in Dow Jones v. Gutnick is discussed and the approach followed by the court critically analysed to highlight the excessive exercise of personal jurisdiction. Other cases concerning the internet are also discussed to highlight the approaches followed to establish personal jurisdiction in internet and e-commerce cases. It is argued that the drawbacks highlight the need for legislation to regulate personal jurisdiction in e-commerce cases.     

Reforming security industry training standards: an Australian case study

ABSTRACT

This article critiques recent developments in training in the Australian security industry. Regulation of the industry is state- and territory-based, with eight jurisdictions enacting purpose-built legislation. Training was a key area of reform in the 1990s and early 2000s, but standards remained fragmented until 2008 when the Committee of Australian Governments agreed on a national competency framework to be implemented by 2010. However, despite the adoption of a common curriculum for core security tasks, the project derailed spectacularly in terms of consistency of standards, as revealed by a number of major inquiries and associated sources. This article analyses the reasons for this situation and recommends an alternative model to optimise competency standards in security work that includes much greater specificity in hours of instruction and in teaching and assessment methods. The lessons from this study have wider application given that deficits in security training appear to be a common problem internationally.     

Co-option,coercion and compromise: challenges of restorative justice in Victoria,Australia

Restorative justice (RJ) encompasses a widely diverging set of practices whereby those most affected by crime are encouraged to meet, to discuss the effects of harms caused by one party to another, and to agree upon the best possible redress of harms when appropriate. In its inception in the late 1970s, RJ was conceptualized and developed as an alternative to formal criminal justice practices. Since this time, however, RJ has largely moved from being an alternative to criminal justice practices to an ‘alternative’ practice within criminal justice systems. This institutionalization has resulted in the significant growth of RJ practices, but has also resulted in RJ being used for criminal justice system goals that are at odds with the needs of victims or offenders. This paper examines the use of the Youth Justice Group Conferencing Program in Victoria, Australia. Drawing from interviews with conference conveners, our research highlights problems related to administrative ‘constraints’ and ‘co-options’ in conferencing in terms of referrals, preparation of conference participants, and victim participation. Following presentation of findings, we conclude with a discussion of implications for the use of RJ within a highly institutionalized setting.     

Healthy aspirations? Crypto-eugenics and the aim to create healthy families in Australia, 1946–1970s

This paper explores the incorporation of eugenic objectives within family focused and psychologically based public health initiatives throughout the 1940s–1970s. By focusing on three of Australia’s enduring public health initiatives – family planning, marriage guidance and sex education – I consider how post-war eugenic rhetoric in Australia was initially dominated by educational services which centred on creating a conducive environment for eugenically aligned reproductive choices within the nuclear family structure. The fact the term ‘eugenics’ was increasingly omitted from what remained eugenically aligned public health activities will also be considered.