The introduction of the COVIDSafe application (the “App”), a contact–tracing application that assists to trace close contacts of individuals who have tested positive for COVID-19, has raised various privacy concerns. To address these concerns, the Federal Government introduced the Privacy Amendment (Public Health Contact Information) Act 2020(the “Act”), which passed both houses on 14 May 2020.The goal of the Act is to ensure strong privacy protections are in place to support the download, use and eventual decommissioning of the App.
The Act elevates the provisions of the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—Public Health Contact Information) Determination 2020 into primary legislation andintroduces additional measures to strengthen privacy protections.
The Act makes it a criminal offence to:
breach the App’s security and privacy controls, imposing possible sanctions of imprisonment for five years and/or a fine of 300 penalty units; and
to force someone to download or use the App.
The Government has made clear that use of the App is entirely voluntary. Specifically, with respect to employment, it is an offence if a person “refuses to enter into, or continue, a contract or arrangement with another person (including a contract of employment)”. Refusing to allow an employee to enter their normal workplace, even if the workplace does not fall within public premises, would constitute a contravention of the Act in that an employer is disadvantaging an employee, either through failure to allow an employee to continue their work contract, constituting adverse action (within the meaning of the Fair Work Act 2009 (Cth)), refusing to receive services from a person, or refusing to allow a person to participate in an activity.
The Act provides that the data in the National COVIDSafe Data Store must be deleted when the pandemic is over or is nolonger likely to be effective as part of Australia’s response to COVID-19.
While an employer cannot direct its employees to download the App, it can encourage employees to do so. In discharging its workplace health and safety obligations, employers should consider the implementation of all available tools for mitigating against the risks of the COVID-19 pandemic.
