The Privacy Amendment (Public Health Contact Information) Bill 2020 (Cth) (the Bill) was introduced into Federal Parliament on 12 May 2020 by Mr Porter, the Commonwealth Attorney-General and was passed the Senate on 14 May 2020. The Bil lwas assented to on 15 May 2020, and is now the Privacy Amendment (Public Health Contact Information) Act 2020 (Act No. 44 of 2020) (the legislation). According to the Attorney-Genera,l the legislation introduces strong privacy protections that apply to data collected through the COVIDSafe app and is intended to facilitate the COVID-19 contact tracing efforts of the State and Territory health authorities.
In a joint Media Release with the Minister for Health, Greg Hunt, the Attorney-General indicated that the COVIDSafe app was an important tool in the fight against COVID-19, and the Privacy Amendment (Public Health Contact Information) Act 2020, should give Australians full confidence that their private information is in safe hands, saying:
The Minister for Health indicated that the COVIDSafe app had already been downloaded more than 5.68 million times and said:
In broad terms, breaches of privacy protections will, under the legislation, be subject to criminal offences, and privacy protections will be overseen by the Australian Information Commissioner (the Commissioner) under the Privacy Act 1988 (Cth). Part of the oversight will be the inclusion of the ability for individuals to make complaints to the Commissioner.
The privacy protections ensure that individuals must not be required to download, use or upload data through COVIDSafe app by any person, and that informed consent is required before the Commonwealth is able to collect data relating to a person through the COVIDSafe app. The protections also limit the ability to disclose COVID app data that is or has been stored in the Commonwealth’s National COVIDSafe Data Store outside of Australia. Under the legislation, data can only be accessed by authorised state and territory health officials for contact tracing purposes after a user who has tested positive to the virus consents to their encrypted data being uploaded.
The Commonwealth will also be required to delete the National COVIDSafe Data Store when COVIDSafe is no longer required or is no longer likely to be effective as part of Australia’s response to COVID-19 (which must be determined based on expert medical advice).
The legislation replaces the previous protections introduced by Ministerial Determination under the Biosecurity Act on 25 April 2020.
According to news reports, the Opposition has been working with the Government since the release of the draft of the legislation, and agreed on changes to the legislation which enabled the quick passage of the legislation through Parliament. However, a number of proposals from the Opposition, such as extra funding for the privacy office to conduct its oversight role, were rejected by the government. Mark Dreyfus, the Shadow Attorney-General, was reported as confirming that the opposition would support the legislation in both houses:
The changes from the draft legislation the Opposition claims to have influenced are:
Under the new legislation, both the Attorney-General and the Commissioner will have to report every six months on the operation and effectiveness of the COVIDSafe app. The changes also prevent the Department of Health from delegating any of its administrator functions over the national data store to an enforcement or intelligence agency.
Recommendations made by the opposition not taken up by the government were extra funding for the Commissioner to conduct its oversight role on the COVIDSafe app, and the appointment of a standalone privacy commissioner to deal with matters relating to the COVIDSafe app. The government's response was that the Commissioner's office did not need any additional resources to take on the COVIDSafe app work.
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Privacy Amendment (Public Health Contact Information) Bill 2020 [Act No. 44 of 2020], second reading speech and explanatory material as reported in the TimeBase LawOne Service.
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