LSB September 2021 LR

FEATURE
information protected by the Health Care
Act 2008 (SA) (‘Health Care Act’). 19
It might be inferred that the purpose
of these provisions was to purportedly
respond to concerns regarding the
potential use of the data collected via
COVID SAfe Check-In for purposes other
than contact tracing. 20 In any event, as
outlined below, the provisions contained
in the directions appear to be ineffectual in
meeting any such objective.
DISCLOSURE REQUIRED BY A COURT OR
TRIBUNAL OR AUTHORISED BY LAW
First, while the State Co-ordinator
can issue directions to require a person to
furnish information it is not clear that the
State Co-ordinator thereafter has a power
to restrict the use of that information
(such as data collected via COVID SAfe
Check-In) by others for other purposes.
Moreover, regardless of the effectiveness
of such provisions, any purported
restriction is clearly in conflict with the
provisions of the Emergency Management
Act regarding disclosure of information
(with the effect that the provisions of the
Act will prevail over the directions to the
extent of any inconsistency).
Section 31A of the Emergency
Management Act prohibits the disclosure
of information relating to the personal
affairs of another that was obtained
in the course of the administration or
enforcement of that Act. Contravention
of this prohibition constitutes an offence.
It is this provision (along with the
aforementioned assurances) on which the
State Government has relied to assert that
data collected via COVID SAfe Check-In
is adequately protected from disclosure. 21
However, reliance on this provision is
misplaced; the provision explicitly allows
for disclosure of information if required
by a court or tribunal constituted by law. 22
Thus, for example, the disclosure might
be compelled pursuant to a subpoena,
or a warrant. Failure to comply with a
subpoena without lawful excuse constitutes
a contempt of court, and is punishable by a
fine or imprisonment (or both). 23
A person might attempt to resist
a subpoena, by seeking to have the
subpoena set aside, 24 or asserting a claim
to public interest immunity. 25 In relation
to any claim of public interest immunity,
the court is required to consider two
conflicting aspects of the public interest:
the harm that would be done by the
production of data on the one hand, as
against a consideration of whether the
fair and efficient administration of justice
would be frustrated or impaired by the
non-disclosure on the other. 26 Similarly,
in relation to a warrant, public interest
immunity might be raised as basis for
resisting seizure. 27 Moreover, a defendant
might seek to convince a court to exercise
the discretion to exclude lawfully obtained
evidence on the basis of fairness (that
admitting the evidence would be unfair
to the defendant in the sense that the trial
would be unfair). 28 Whether a subpoena
is set aside, a claim for public interest
immunity is upheld, or such data is
otherwise excluded as evidence in any trial,
will depend on the circumstances of the
particular proceeding before a court; it will
be decided on a case by case basis.
Second, the inclusion of the reference
to the Health Care Act does not appear to
take the purported restriction regarding
the disclosure of data collected via
COVID SAfe Check-In much further.
This Act prohibits the disclosure of
personal information which was obtained
in connection with the operation of
this Act except to the extent a person
is authorised or required to disclose
that information. Contravention of this
prohibition constitutes an offence. Again,
however, the provision explicitly allows for
disclosure of information as required or
authorised by or under law. 29
It’s noteworthy that the Western
Australia State Government expressed
similar concerns regarding the effectiveness
of issuing directions to restrict the
disclosure of information collected via
SafeWA (an analogue of COVID SAfe
Check-In). 30 These concerns served as a
basis for the implementation of further
legislative safeguards (as discussed below).
ADMISSIBILITY OF DATA AS EVIDENCE IN
ANY CIVIL PROCEEDING, OR CRIMINAL
PROSECUTION
Moreover, while the Emergency
Management Act and the Health Care Act
generally prohibit and criminalise the
disclosure of information, such as data
collected via COVID SAfe Check-In, this
legislation does not render the information
inadmissible as evidence in any civil
proceeding, or criminal prosecution. Thus,
even if information is disclosed to a law
enforcement authority in contravention of
the prohibition, the information remains
admissible as evidence in any proceeding
before a court notwithstanding that the
disclosure might be illegal or unlawful,
unless otherwise excluded by a court.
In deciding whether to exercise the
discretion to exclude illegally obtained
evidence the court has to consider and
weigh against each other two competing
requirements of public policy. On the one
hand there is the public interest in bringing
to conviction those who commit criminal
offences, and on the other hand there is
the public interest in the protection of
the individual from unlawful and unfair
treatment. 31 Whether such information is
excluded as evidence will depend on the
circumstances of the particular proceeding
before a court; it will be decided on a case
by case basis.
In summation, this legislative
framework makes it difficult for South
Australians to have absolute confidence
in the assurances provided by the State
Government regarding the storage, use
and disclosure, of the data collected via
COVID SAfe Check-In.
Moreover, the potential access by
law enforcement authorities to such data
for purposes other than contact tracing
(for general law enforcement activities) is
not merely theoretical. Law enforcement
authorities in Queensland, and Western
Australia, have accessed such data, and in
Victoria have requested access (but were
refused, and advised to obtain a warrant). 32
Moreover, the Acting Minister for Police
in Victoria has publicly expressed his
September 2021 THE BULLETIN 13