COVIDSafe App Regulation
It is a breach of biosecurity laws to direct/require employees to download the Covidsafe App. It will also be in breach of Privacy Amendment (Public Health Contact Information) Bill 2020 once it comes into force.
- Currently only a draft – https://www.ag.gov.au/RightsAndProtections/Privacy/Pages/COVIDSafelegislation.aspx
To reiterate – downloading the COVIDSafe app is completely voluntary. It is against the law to require another person to download, or operate, the COVIDSafe app.
While Australians can be “encouraged” to download it, they cannot be forced to download the app. Confirmed by the PM.
The Australian Council of Trade Unions (ACTU) has also said that while the app is widely accepted as being safe and useful but concerned Australians cannot be required to install it.
Nor can an employer take action against you for reasons that include a failure to download the app.
Federal Government Website (accessed 13/05):
COVIDSafe app and the law – health.gov.au
Downloading the COVIDSafe app is completely voluntary. It is against the law to require another person to download, or operate, the COVIDSafe app.
In particular, a person (including a business or company) cannot:
- refuse entry into, or continue, a contract or arrangement with another person (including a contract of employment) if they don’t have the app
- disadvantage an employee if they don’t have the app
- refuse to allow another person to enter premises if they don’t have the app
- refuse to allow another person to participate in an activity if they don’t have the app
- refuse to receive or provide goods or services if someone doesn’t have the app
For example, your employer must not require the download or use of the COVIDSafe app as part of your employment, or disadvantage you if you refuse to download the app. Likewise, an operator of a business must not refuse entry to you just because you have not downloaded or used the app.
Penalties apply for breach
Biosecurity Act 2015
Contravening an emergency determination made by the Minister for Health under the Biosecurity Act 2015 is a criminal offence punishable by a maximum sentence of 5 years’ imprisonment, or a fine.
Subsection 9(1)
Biosecurity Determination provides that a person must not require that another person:
- download COVIDSafe to a mobile telecommunications device;
- have COVIDSafe in operation on a mobile telecommunications device; or
- consent to uploading COVID app data from a mobile telecommunications device to the National COVIDSafe Data Store.
Subsection 9(2)
Biosecurity Determination provides that a person must not:
- refuse to enter into, or continue, a contract or arrangement with another person (including a contract of employment);
- take adverse action (within the meaning in the Fair Work Act 2009 (Cth) (FW Act)) against another person;
- refuse to allow another person to enter premises;
- refuse to allow another person to participate in an activity;
- refuse to receive goods or services from another person; or
- refuse to provide goods or services to another person,
on the ground that, or on grounds that include the ground that, the other person:
- has not downloaded COVIDSafe to a mobile telecommunications device; or
- does not have COVIDSafe in operation on a mobile telecommunications device; or
- has not consented to uploading COVID app data from a mobile telecommunications device to the National COVIDSafe Data Store.[2]
A person who contravenes a requirement in the Biosecurity Determination will commit an offence, punishable by a maximum penalty of up to five years’ imprisonment or 300 penalty units ($63,000) (or both).
Draft Bill Penalties (reflect Biosecurity Act)
Business owners who ban people from entry if they have not downloaded the app run the risk of a $63,000 fine and five years in jail under proposed laws.
Attorney-General Christian Porter
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- The draft bill clarifies the enforcement mechanisms for the penalties that are already in place against misuse of data from the COVIDSafe app.
- Supplementary to protections provided by the biosecurity determination.
- Bill puts in place a clear process outlining how the government will satisfy its obligation to delete all COVIDSafe data from the national COVIDSafe data store once the pandemic is over.
Advice from Gov – What should I do if I’m told I have to download the app?
The COVIDSafe app enables faster and more comprehensive contact tracing for people exposed to coronavirus (COVID-19) and all Australians are encouraged to download it to help protect themselves, their family and community.
However, it is voluntary and you cannot be told it is compulsory — regardless of your decision.
If your employer or service provider purports to require you to download, or use, the COVIDSafe app you can:
- Explain to the person who is telling you to download or use the app that:
- downloading or using the app is voluntary
- The Minister for Health has made a determination under the Biosecurity Act 2015 which prohibits anyone making another person download or use the app
- In some circumstances this could amount to a criminal offence.
- Contact the National Coronavirus Helpline on 1800 020 080.
- A breach of the Biosecurity Act determination is an offence. If an offence has been committed, you can contact local state and territory police, or report a crime to the Australian Federal Police.
Further References
- https://au.finance.yahoo.com/news/strathfield-council-in-spotlight-for-covidsafe-app-013134100.html
- https://hallandwilcox.com.au/thinking/covidsafe-can-an-employer-direct-employees-to-download-or-use-the-app/
- https://www.smartcompany.com.au/coronavirus/covidsafe-app-employers/
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