A week ago, the Australian Federal Government launched the COVIDSafe phone app. Its purpose is to speed up the process of finding and contacting people who may have been exposed to COVID-19, by tracking the locations and data of people who sign up for it. The government is encouraging all Australians to download the app, however there are a number of potential issues to consider.
So, what do we do? We are all under pressure to sign up for COVIDSafe, so we thought we would write a blog to talk about the purpose of the app, some assumptions that we are making, and some legal points arising out of the potential use of the app.
I think we would almost all agree on several propositions:
- We want to stay safe, protect as many people as possible, and reduce the possibility of this pandemic getting worse.
- To do that, we accept that there will be some reductions in our freedoms until the pandemic has gone away.
- We want our freedoms restored once the pandemic has gone away.
- We want to trust our state and federal governments to be honest with us and to responsibly manage any information that we give them.
Here is the link to a great article in the Law Society Journal, which compares the safety net concept against the police state concept.
We urge you to read it. It will help you to understand many additional points to the ones we outline below.
Here are some of the legal issues to consider in relation to COVID-19 government regulations and the new COVIDSafe app :
- Emergency powers may be introduced by the Federal Government under the Biosecurity Act 2015, and by the NSW Government under the NSW Public Health Act 2010. These powers are limited to 90 days, with sunset clauses, and after that they are removed.
- However, what both these governments are doing, as well as other state governments in Australia, is reintroducing changes to existing orders on a regular basis. This resets the clock, so that the 90 days keeps getting longer and longer.
- There is a lack of clarity. It is essential that we all know what the law is, and right now most of us simply do not. This is caused by constant daily updates to the laws, laws being passed late at night, laws being extremely difficult to find online, and the general vagueness of what constitutes “reasonable excuses”.
- There is also the issue of trust. Overall, the COVIDSafe phone app is a great idea – in principle. In practice, there are a number of problems that need to be addressed. They include:
- The government has already outsourced the data to be stored by Amazon, a US company. Despite Minister Greg Hunt’s assurances that the data can only be accessed in Australia, and that anyone accessing the data illegally would attract a penalty of up to five years in jail, those laws DO NOT apply to Amazon, which is based in the US.
- People are hesitant to release their personal data to the government, particularly as the source code for the COVIDSafe app has not been released. Many people say that the source code should be released so that the privacy settings can be scrutinised. This has not happened.
- The Federal Government unfortunately has a long history of failures in relation to the collection of data and metadata, from Robodebt, the release of Medicare information, the incorrect use of data by the Department of Home Affairs, etc., even down to the chasing of whistle-blowers and journalists. This has led to a reduced trust in the government to handle our data correctly.
- At a state level, there is the question of the policing of the laws. The use of the word “reasonable” allows for a lot of discretion by the police as to how, where and upon whom they are going to enforce these laws. Most of the time, $1,000.00 fines will be issued, but even though almost all of the COVID-19 cases in Sydney have been located in the eastern and northern suburbs, almost all of the police fines have been issued in the western suburbs. In other words, police discretion is being used in a way which has not led to the reduction of the spread of COVID-19.
Overall, the choice is yours – signing up for the new COVIDSafe app is completely voluntary.
Whilst there is strong community support for both the app and the current restrictive orders, we have to look at how long they are going to be in place and what safeguards there are to protect us from falling into the prospect of a police state. Who do you trust?