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Privacy (COVID Check-in Data) Bill 2021

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2019 - 2020 - 2021

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

Privacy (COVID Check-in Data) Bill 2021

 

 

 

EXPLANATORY MEMORANDUM

and

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

 

 

 

 

 

 

Circulated by authority of

Adam Bandt MP



Privacy (COVID Check-in Data) Bill 2021

 

 

OUTLINE

 

Every state and territory in Australia has a check-in system in place to help manage the COVID-19 pandemic. People across the country are required to check-in when going about their daily lives to facilitate effective contact tracing and to help manage COVID-19 outbreaks. The Commonwealth Parliament should support effective contact tracing and encourage the use of check-in systems.

 

Disappointingly, personal data gathered from check-ins has been used by the police for reasons unrelated to COVID-19. And despite the country wide use of check-ins, Australia does not have a nationally consistent approach to preventing law enforcement from accessing COVID-19 check-in data. Individual states and territories have different protections in place, with some allowing personal information to be accessed for unrelated law enforcement purposes via a warrant, while other states and territories have prohibited it. This inconsistency serves to undermine the effectiveness of COVID-19 check-ins as people cannot trust that their information will only be used for contact tracing purposes. 

 

This Bill will introduce a ban on using COVID-19 check-in data for enforcement related activity purposes by preventing Commonwealth, State or Territory authorities from using or providing COVID-19 check in data for law enforcement purposes.  

 

FINANCIAL IMPACT

 

The bill will have no financial impact.

 

NOTES ON CLAUSES

 

Item 1: Short Title

 

This clause provides for the Act to be cited as the Privacy (COVID Check-in Data) Act 2021 .

 

Item 2: Commencement

 

This clause provides for the whole of this Act to commence the day after it receives Royal Assent.

 

Item 3: Act binds the Crown

 

This clause states that this Act binds the Crown in each of its capacities.

 

Item 4: Object of this Act

 

This clause provides the purpose of this Act. The main purpose of this bill is to support the effective management and control of COVID in Australia by providing stronger privacy protections for COVID check-in data to encourage public acceptance and use of COVID check-in apps and enable faster and more effective contact tracing.

 

Item 5: Definitions

 

This clause defines terms used in the Act;

 

Commonwealth, State or Territory authority includes:

a)     the Commonwealth or an authority or agency of the Commonwealth; and

b)     a State or an authority or agency of a State; and

c)     a Territory or an authority or agency of a Territory.

 

COVID means the coronavirus known as COVID-19

 

COVID check-in app means a mobile app that is made available or has been made available to the public by or on behalf of a Commonwealth, State or Territory authority for the purpose of facilitative COVID contract tracing. This includes a mobile app available before the commencement of this Act.

 

COVID check-in data means data relating to a person that has been collected or generated through the operation of a COVID check-in app (as defined above). This includes data that has been collected or generated before the commencement of this Act.

 

COVID contact tracing means contact tracing for the purposes of preventing and controlling the entry, emergency, establishment or spread of COVID into Australia or any part of Australia.

 

de-identified and enforcement related activity have the same meanings as in the Privacy Act 1988. The Privacy Act 1988 defines:

 

de-identified as: personal information is de-identified if the information is no longer about an identifiable individual or an individual who is reasonable identifiable.

 

enforcement related activity as:

a)     the prevention, detection, investigation, prosecution or punishment of:

                                      i.         criminal offences; or

                                     ii.         breaches of a law imposing a penalty or sanction; or

b)     the conduct of surveillance activities, intelligence gathering activities or monitoring activities; or

c)     the conduct of protective or custodial activities; or

d)     the enforcement of laws relating to the confiscation of the proceeds of crime; or

e)     the protection of the public revenue; or

f)      the prevention, detection, investigation or remedying of misconduct of a serious nature, or other conduct prescribed by the regulations; or

g)     the preparation for, or conduct of, proceedings before any court or tribunal, or the implementation of court/tribunal orders.

 

mobile app means an app that is designed for use on a mobile device.

 

Item 6: Ban on using COVID check-in data for enforcement related activity

 

Item 6 provides that a Commonwealth, State or Territory authority must not use or disclose COVID check-in data for the purposes of enforcement related activity.

 

This ban does not apply to a Commonwealth, State or Territory authority using or disclosing data that the authority obtained from a source that is not directly or indirectly from a COVID check-in app or de-identified statistical information.

 

An example is provided which outlines how data could be obtained indirectly from a COVID check-in app and is therefore covered by the ban.

 

Item 7 Constitutional basis of this Act

 

Item 7 sets out a Constitutional basis of the Act.

 

Item 8 Additional operation of this Act

 

Item 8 outlines further bases to support and explain the operation of this Act.

 



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

Privacy (COVID Check-in Data) Bill 2021

 

This bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the bill

 

Every state and territory in Australia has a check-in system in place to help manage the COVID-19 pandemic. People across the country are required to check-in when going about their daily lives to facilitate effective contact tracing and to help manage COVID-19 outbreaks. The Commonwealth Parliament should support effective contact tracing and encourage the use of check-in systems.

 

Disappointingly, personal data gathered from check-ins has been used by the police for reasons unrelated to COVID-19. And despite the country wide use of check-ins, Australia does not have a nationally consistent approach to preventing law enforcement from accessing COVID-19 check-in data. Individual states and territories have different protections in place, with some allowing personal information to be accessed for unrelated law enforcement purposes via a warrant, while other states and territories have prohibited it. This inconsistency serves to undermine the effectiveness of COVID-19 check-ins as people cannot trust that their information will only be used for contact tracing purposes. 

 

This Bill will introduce a ban on using COVID-19 check-in data for enforcement related activity purposes by preventing Commonwealth, State or Territory authorities from using or providing COVID-19 check in data for law enforcement purposes. 

 

Human rights implications

 

This bill engages the right to privacy in Article 17 of the International Covenant on Civil and Political and Rights and advances the right to privacy by providing stronger privacy protections for COVID check-in data.

 

 

 

Adam Bandt MP