Australia’s COVIDSafe Experiment, Phase II: A Draft Law for Surveillance and Trust

[2020] University of New South Wales Law Research Series

32 Pages Posted: 11 May 2020 Last revised: 18 May 2020

See all articles by Graham Greenleaf

Graham Greenleaf

University of New South Wales, Faculty of Law

Katharine Kemp

University of New South Wales (UNSW) - Faculty of Law

Date Written: May 8, 2020

Abstract

The joint Australian governments’ coronavirus contact tracing app, marketed as ‘COVIDSafe’, was released on 26 April 2020 for public download by the federal government, together with an emergency Determination under the Biosecurity Act to govern its operation, a Privacy Impact Assessment (PIA), plus the App itself and its privacy policy.

A week later the federal government released an Exposure Draft Privacy Amendment (Public Health Contact Information) Bill 2020 (‘the COVIDSafe Bill’), which it is expected will be debated and enacted in a Parliamentary sitting from 12-14 May.

It is a package intended to create sufficient public confidence to result in downloads of the app by a sufficient percentage of the Australian mobile-phone-owning population, for it to have a significant effect on the tracing of persons infected with the COVID19 virus. In the first two weeks since its launch over 5 million Australian’s have downloaded the app, about 25% of those possible.

This article analyses the extent to which the draft Bill provides the privacy protections that would help justify public trust, and aims to make a constructive contribution to the development of better legislation and greater transparency.

The Draft Bill contains significant improvements on the previous Determination, particularly the inclusion of an individual right of enforcement action before the Privacy Commissioner for most breaches of the COVIDSafe requirements. This is particularly important as a means of stopping attempts to make use of the app de facto compulsory. It also adds valuable provisions concerning deletion of data, extension of Commonwealth jurisdiction to cover state and territory authorities, and sharing of information between Australian privacy authorities.

We conclude that the conditions necessary to justify sufficient public trust in government for the Australian public to opt in voluntarily to the installation and use of the COVIDSafe app, and to not opt out, are lacking. Many of the main deficiencies we identify in this article are remediable: five deficiencies in transparency; and nine categories of improvements to the current Determination by the proposed COVIDSafe Act. However, the question of whether an individual Australian would be well advised to install and run the app remains a decision which depends on individual circumstances.

Many other countries are developing contact tracing apps. Australia’s experiment is further advanced than most that are attempting to build a system on voluntary uptake, protected by legislation. The results of its experiment will be of interest to many.

The Act referred to above, the Privacy Amendment (Public Health Contact Information) Act 2020 (Cth) (‘the COVIDSafe Act’) was enacted on 15 May 2020. The authors' analysis of that Act is G. Greenleaf & K. Kemp 'Australia’s COVIDSafe experiment, Phase III: Legislation for trust in contact tracing' at https://ssrn.com/abstract=3601730.

Keywords: Australia, privacy, data protection, COVID19, COVIDSafe, coronavirus, surveillance, contact tracing, proximity

Suggested Citation

Greenleaf, Graham and Kemp, Katharine, Australia’s COVIDSafe Experiment, Phase II: A Draft Law for Surveillance and Trust (May 8, 2020). [2020] University of New South Wales Law Research Series. Available at SSRN: https://ssrn.com/abstract=3595947

Graham Greenleaf (Contact Author)

University of New South Wales, Faculty of Law ( email )

Sydney, New South Wales 2052
Australia
+61 2 9385 2233 (Phone)
+61 2 9385 1175 (Fax)

HOME PAGE: http://www2.austlii.edu.au/~graham

Katharine Kemp

University of New South Wales (UNSW) - Faculty of Law ( email )

Kensington, New South Wales 2052
Australia

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