Bill passes parliament: Privacy Amendment (Public Health Contact Information) Bill 2020
With the intention of safeguarding data collected in the Federal Government’s “COVIDSafe” app, the Parliament has passed a bill to amend the Privacy Act and introduce new provisions dealing with the app and its data. This is a far more sensible, and no doubt legally effective, mechanism for the protection of this data – on a legislative basis passed by the Parliament – rather than the relying on the initial ministerial direction made under a section of the Biosecurity Act 2015.
New provisions added to the Privacy Act will make it an offence to use any data from the COVIDSafe app other than for its intended purpose, that is, assisting with contact tracing in the event of an app user coming in contact with another app user who is confirmed to have contracted COVID19. To this end, a number of permutations of offences covering various scenarios have been created.
In addition, misusing the app data is deemed to be an interference with an individual’s privacy, and the existing general protections of the Privacy Act will apply.
A few other interesting points emerge.
It will be an offence to require someone to download or use the app. Similarly, it will also be an offence to refuse to deal with someone if they do not have the app installed. This perhaps brings a portion of the Privacy Act into territory that would normally be governed by legislation dealing with employment or discrimination laws.
Presumably as an added safeguard, a new section 94ZC to the Privacy Act will state that COVIDSafe data remains the “property” of the Commonwealth. It is long settled that while data or information may be proprietary in nature and can be commercially valuable, the law does not recognise it as “property” capable of being owned or assigned to another. Given the other safeguards already in the legislation, does this risk muddying this concept by affording proprietary status to only this information?
Finally, there is a mechanism for the amendments to expire and be repealed, almost as if they were never there in the first place, when the Health Minister determines (after consulting medical/health advice) that the app is no longer necessary. Will we ever return to those times again?
