Legal concerns remain following release of COVIDSafe app

By Jerome Doraisamy|27 April 2020
Greg Hunt

While advocacy bodies support the government’s efforts to combat coronavirus, there are outstanding privacy and legislative concerns pertaining to the new tracking app.

The federal government’s COVIDSafe app – intended to slow the spread of the global coronavirus pandemic in Australia by contacting those who may have been exposed – was launched over the weekend.

The voluntary phone app is something Australians can do, the Department of Health says on its website, “to protect you, your family and friends and save the lives of other Australians. The more Australians connect to the COVIDSafe app, the quicker we can find the virus”.

Speaking on Sunday, Health Minister Greg Hunt said: “In terms of privacy, no person can access what’s on their phone, no other person can access what’s on your phone. It is also prohibited by law – I have already signed into law, on behalf of the government, a Biosecurity Act determination which prevents access, which ensures that the data has to be kept on an Australian server.

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“It cannot leave the country, it cannot be accessed by anybody other than a state public health official, it cannot be used for any purpose other than the provision of data for the purposes of finding people with whom you have been in close contact, and it is punishable by jail if there is a breach of that, he added.

However, legal advocates remain sceptical on a number of fronts, following concerns raised last week, reported here and here.

The legislative framework, for example, needs to be addressed, said Law Council of Australia president Pauline Wright.

“We also consider there to be ambiguities within the determination [instrument] surrounding the period that the National COVIDSafe data store is operational and when the obligation to delete information will commence. There is also an absence of ongoing obligations after the determination ceases to be in effect,” she said.

LCA welcomed the opt-in nature of the app, Ms Wright noted, as well as the prohibition of the collection, use and disclosure of COVID-19 app data for anything other than the primary purposes of the tracing app, together with the “explicit prohibition on the coercive use of the app” as a condition of employment (current or former), entry to premises or participation in activities.

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That said, “a potential legal ambiguity exists around whether other laws authorising the issuing of law enforcement and intelligence warrants could override the prohibition on access, as provided under the determination, without an express provision included in the determination stating that it prevails over all other laws”, she added.

“Clarity should also extend to the operation of the exemptions under the Privacy Act 1988, for example employee records covering an ‘act or practice directly related to a current or former employment relationship between the employer and the individual’.”

LCA has called on the government to make a firm commitment to introduce legislation on the first sitting day in May that will replace the determination, Ms Wright proclaimed. 

“As an executive instrument, the determination is inherently susceptible to unilateral executive amendment or repeal and must be considered as a strictly interim measure, pending the introduction of legislation in the Parliament to put the regulatory framework on a comprehensive statutory footing.”

Australian Lawyers Alliance national president Andrew Christopoulos agreed, saying the community must be protected against the misuse of information collected.

“The ministerial determination that is currently governing the use of the app is not strong enough. The government has said that legislation will be introduced in parliament in May to back up this determination and we look forward to reviewing this as soon as possible,” he argued.

“As a minimum, the legislation must clearly state that its use is limited to minimising the danger of community transmission of the COVID-19 virus and it must provide an end date for the use of the app. We would also like to see the operation of the app reviewed every three months by the Australian Information and Privacy Commissioner to ensure that there is no breach of the Privacy Act, and that the information collected has only been used for the management of the COVD-19 virus.”

The launch of the app, Mr Christopoulos added, further highlighted the need for new human rights legislation in Australia.

“Without a federal human rights law that enshrines the right to privacy and allows for legal remedies against government agencies, we need strong legislation in place to manage and monitor the operation of this app,” he said.

Australian Lawyers for Human Rights president Kerry Weste supported this: "ALHR shares the concerns raised by the Law Council of Australia and calls on the Morrison Government to urgently ensure that provision is made for independent oversight and reporting on the use of the COVIDSafe app."

"Australia is the only Western Democracy in the world without a federal Human Rights Act or Bill of Rights in place to ensure that measures like the COVIDSafe app are consistent with human rights standards and represent a proportionate response. This makes the inclusion of robust mechanisms for independent oversight and transparent reporting on the use of the COVIDSafe app all the more essential," she said.

"In a democratic nation laws that impact upon peoples' privacy and involve the retention of personal data should be made by parliament via legislation, rather than by executive order. The danger with executive orders is that they can be unilaterally amended or extended without parliamentary oversight. The COVIDSafe Determination should be an interim measure only and the Government must introduce legislation as soon as parliament returns."

Elsewhere, Victorian Bar CEO Katherine Lorenz said the Garden State’s member association for barristers can appreciate what the federal government is trying to do via the app.

“Dr Brendan Murphy, the chief medical officer, supports the app as an efficient way of tracking those potentially exposed to infection,” she said.

“Provided that downloading the app is voluntary, and the checks and balances that the government says are in place operate as they are described and intended, the app seems like it’s a sensible way to use the technology that we have available for the common good.”

Legal concerns remain following release of COVIDSafe app
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