LSB September 2021 LR

FEATURE
reluctance to implement any legislation to
guard against law enforcement authorities
obtaining access to such data for use for
purposes other than contact tracing. 33
FORM OF ANY LEGISLATIVE SAFEGUARDS
The legislation adopted by the
Commonwealth, and Western Australia,
serve as useful examples, of the form of
legislative safeguards required in South
Australia.
At the Commonwealth level, there is
the Privacy Amendment (Public Health Contact
Information) Act 2020 (Cth). 34 This legislation
regulates the collection, storage, use and
disclosure of the personal information
of persons captured by the use of the
application COVIDSafe. The legislation
criminalises the unauthorised collection,
use or disclosure of data obtained via
COVIDSafe. The same legislation provided
that the collection, use or disclosure of such
data was, relevantly, only permitted for the
purpose of, and only to the extent required
for the purpose of: (i) investigating possible
non-authorised collection, use or disclosure
of data obtained via COVIDSafe; or
(ii) prosecuting a person for an offence
regarding the non-authorised collection,
use or disclosure of data obtained via
COVIDSafe. 35
More recently, Western Australia has
enacted the Protection of Information (Entry
Registration Information Relating to COVID-19
and Other Infectious Diseases) Act 2021 (WA).
This Act provides protections similar to
those outlined above in relation to Privacy
Amendment (Public Health Contact Information)
Act 2020 (Cth). 36 However, further, this Act
explicitly provides that ‘entry registration
information’ 37 is not admissible in evidence
in any criminal or civil proceedings other
than proceedings for an offence relating to
compliance with an obligation under the
Act, or the recording or disclosure of entry
registration information. 38 As was explained
during the Second Reading Speech:
This bill will introduce a strong, clear
and comprehensive legislated framework
for regulating the use of entry registration
information. …This is in recognition of the
critical importance of this information in our
public health response to this pandemic and the
need to maintain public confidence in our entry
registration arrangements. 39
The legislation adopted by the
Commonwealth and Western Australia
address some of the concerns which
remain with the current legislative
framework in South Australia. However, the
legislation adopted by the Commonwealth
and Western Australia is not without issue.
For example, the legislation adopted by the
Commonwealth does not explicitly state
that data obtained via COVIDSafe is not
admissible as evidence in criminal or civil
proceedings unrelated to contact tracing
(although it can be inferred). Further, the
legislation adopted by Western Australia
does not address what other use can be
made of ‘entry registration information’.
The legislation does not explicitly protect
against the use of such information
(regardless of how obtained) to uncover
other evidence against the individual who
provided the information. This is what
might be described as a prohibition on
‘indirect use’ or protection from ‘derivative
use’. 40 An example of such indirect or
derivative use is using data collected via
COVID SAfe Check-In to obtain a search
warrant (which in turn is used to obtain
other evidence against the individual in
question). 41
CONCLUSION
Assurances that the data collected
via COVID SAfe Check-In will not be
used for any purpose other than contact
tracing are insufficient given that they are
without legislative basis. To the contrary,
the Emergency Management Act makes
specific provision for the disclosure of
information, such as the data collected via
COVID SAfe Check-In.
As outlined above, this lack of
legislative safeguards remains concerning
for a number of reasons. To remedy the
situation, and consistent with the assurances
given, the State Government should
introduce legislation which addresses and
prohibits disclosure, use (including as
admissible evidence), and derivative use, of
data collected via COVID SAfe Check-In
(or any other electronic platform), for any
purpose beyond contact tracing in relation
to COVID-19. Put simply, not only is the
data collected via COVID SAfe Check-In
of critical importance in our public health
response to this pandemic, but so too is the
trust and willingness of South Australians
to provide such information so long as
called upon.
This article is based upon legislation as in
effect as at 2 August 2021. B
Endnotes
1 Acknowledgements: The author wishes to thank
Associate Professor Matthew Stubbs, and others,
for valuable feedback regarding earlier drafts of
this article. Any errors are the author’s own.
Eugene Boisvert, ‘South Australia coronavirus
cluster grows again as pizza bar link confirmed’,
ABC (Web Page, 26 November 2020) ;
‘SA to roll out mandatory
QR check-ins for venues’, Sky News (Web Page,
27 November 2020) ; Emergency
Management (Public Activities No 13) (COVID-19)
Direction 2020, cl 10.
2 Emergency Management Act 2004 (SA), s 28(1)
(‘Emergency Management Act’).
3 Boisvert, ‘South Australia coronavirus cluster
grows again as pizza bar link confirmed’ (n 1); ‘SA
to roll out mandatory QR check-ins for venues’
(n 1). See, also, Emily Cosenza, ‘South Australia
shuts out Victorian travellers from midday on
Saturday’, The Australian (online, 17 July 2021)
; Steven
Marshall MP and Stephen Wade MLC, ‘Operation
COVID Shield Begins’ (Media Release, 22
February 2021) .
4 ‘QR codes are being rolled out in venues across
South Australia — here’s what you need to know’,
ABC (Web Page, 1 December 2020) ;
Andrew Hough and Kara
Jung, ‘Contact tracing in SA: What you need to
know’, The Advertiser (online, 17 November 2020)