KEY TAKE OUTS:
- The COVIDSafe application is designed to slow the spread of COVID-19 by notifying its users when they have come in contact with other users who have tested positive to the virus.
- COVIDSafe is recommended but completely voluntary.
- Although an employer can recommend employees download COVIDSafe, an employer cannot require that it be downloaded in order to enter or continue employment arrangements.
Is COVIDSafe mandatory?
On 26 April 2020, the Australian Government released the COVIDSafe application (“COVIDSafe”) which operates by collecting personal data of the user and storing these on the Federal Government’s private servers hosted by Amazon. By utilising Bluetooth, COVIDSafe creates an encrypted record of all other users which an individual comes in close proximity with.
In the event a user of COVIDSafe is tested positive of the virus and informs the National COVIDSafe Data Store, COVIDSafe anonymously notifies all other users that have come in contact with the positive-tested user within the last 14 days.
Both Scott Morrison PM and the Department of Health have released public announcements to clarify that COVIDSafe is not mandatory but is highly recommended to slow the spread of COVID-19.
The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—Public Health Contact Information) Determination 2020 (“Biosecurity Determination”) was introduced to Parliament on 25 April 2020 and introduces, among other things, restrictions relating to requiring the use of COVIDSafe.
Pursuant to s9(1) of the Biosecurity Determination, a person must not require that another person download COVIDSafe nor can a person refuse to enter into, or continue, an employment or contract arrangement with another person on the grounds that they have not downloaded COVIDSafe.
Furthermore, s9(2) prevents employers from refusing an employee entry onto workplace premises on the grounds that they have not downloaded COVIDSafe.
The Biosecurity Determination has the force of law and a person who contravenes its requirements is guilty of an offence of up to 5 years imprisonment or 300 penalty units, or both.
The Privacy Amendment (Public Health Contact Information) Bill 2020 was introduced to Parliament on 11 May 2020 to support this determination, echoing the same restrictions and penalties as outlined in the Biosecurity Determination.
The Bill was passed on 14 May and applies in all Australian states and territories.
An employer can recommend that employees download COVIDSafe, but they cannot make an employee compulsorily download it and use it. Following the introduction of the Biosecurity Determination, employers who do so will be guilty of an offence.
To see the full Biosecurity Determination, please click here.
To see the full Privacy Amendment (Public Health Contact Information) Bill 2020, please click here.
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