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There has been a lot of talk about invasion of privacy and the new COVID-19 tracing application, COVIDSafe. The world is in a spin from the global pandemic and governments are trying their best to manage the protection of their citizens. In this case, by allowing for an application to trace those who have tested positive for the COVID-19 virus.

COVIDSafe has been developed to help keep you, your family and your community safe from further spread of coronavirus through early notification of possible exposure. This alerts people who may be at risk of having contact with the virus. The use of the app will help the government to move faster to reduce restrictions than would otherwise be possible.

Under the Biosecurity Act 2015, the Health Minister may determine emergency requirements during human biosecurity emergency periods (s478). The COVID-19 pandemic has been determined an emergency period.

As of 25 April 2020, a declaration was made called the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—Public Health Contact Information) Determination 2020 – or the “COVIDSafe App Determination”.

The COVIDSafe Determination has been put in place to govern the law and manner in which information obtained from the app can be used. The object of the instrument itself is to make contact tracing faster and more effective by encouraging public acceptance and uptake of the COVIDSafe app.

There has been a lot of talk and information concerning the data and Bluetooth capabilities in regards to COVIDSafe, however, what is important to note is what the data can and cannot be used for/in.

What Does The Law Say?

At law, a person must not collect, use or disclose COVIDSafe app data. There are very specific exceptions, which include but are not limited to:

  • For the purpose of, and only to the extent required for the purpose of, undertaking contact tracing.

A full list of exceptions can be found in under s6(2) of the COVIDSafe App Determination.

A person who has been found to not comply with emergency requirements and directions can be charged with non-compliance, which carries with it a maximum penalty of 5 years imprisonment and/or 300 penalty units.

It is important to note that information and data gathered from this app cannot be used for any other purpose, other than designated in the declaration. This includes for the purpose or proof of criminal offences. It does not enable information gathered to be used in criminal proceedings (other than for the non-compliance as noted above), nor can it be used adversely against an individual other than for the sole purpose of tracing the spread of COVID-19.

What Happens To My Data?

Specifically designated for in the declaration is that the Commonwealth Government must cause the app data in the National COVIDSafe Data Store (the official storage of the data collated) to be deleted after the COVID-19 pandemic has concluded (s7(5)). Obviously at this stage, the determined length of time until the pandemic is concluded is unknown.

Can I Be Forced To Download COVIDSafe?

Notwithstanding the intent of the declaration, a person must not coerce others to use the COVIDSafe application.

They must not require another person to download the COVIDSafe app, have it operating on a mobile device or make them consent to upload the data to the National COVIDSafe Data Store (s9(1)). To do so would be a breach of the declaration and a criminal offence.

A person must not, amongst other things, refuse a person to enter a premise, allow a person to participate in an activity, refuse to contract with another person (employment or otherwise) on the grounds that (or including the grounds that) the person has not downloaded the COVIDSafe app, or has it operational, or not consented to having their data uploaded (s9(2)).

The protections at law as outlined above are in an effort to protect the privacy of individuals in a time where extraordinary measures are being made by governments across the world in dealing with an unprecedented health crisis. You can find a full list of Coronavirus Contact App FAQs here.

If you have any questions or concerns about the COVIDSafe app or COVID-19 in general, please call us on (08) 8110 7900.

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