An iPhone displays the CovidSafe app released by the Australian government on Tuesday, April 29, 2019. The app traces every person running the app who has been in contact with other app users who has tested positive for coronavirus in the previous few weeks. The automation of coronavirus contact tracing seeks to allow the easing of restrictions in Australia. (AAP Image/Dave Hunt) NO ARCHIVING

COVIDSafe app regulations say you can’t be barred from work or the shops for not downloading

AAP FactCheck May 8, 2020

The Statement

With the number of COVIDsafe app users now over five million, a Facebook post is claiming “hidden” rules could allow workplaces and supermarkets to bar people who haven’t installed the program on their phone.

The May 3 Facebook post claims the COVIDsafe app “comes with some hidden secret rules that Scummo hasn’t mentioned”. “Scummo” is an apparent derogatory reference to “ScoMo” – the nickname sometimes applied to prime minister Scott Morrison.

The post states: “Scummo won’t be making the App mandatory but their (sic) maybe a potential risk of circumstances – Supermarket can ask you if you have downloaded the app before entry. No app no entry.”

It then goes on to say: “Employer can ask you if you have downloaded the app before commencing work. No app no work.”

The post then states: “I’d say that will more then (sic) likely happen to anything we walk into movies, footy, pub etc.”

The post includes a screenshot of the COVIDsafe app Privacy Impact Assessment (PIA) report by law firm Maddocks, which was commissioned to do the assessment by the federal Department of Health, the agency responsible for managing the app.

The image highlights paragraph 3.19.4 of the PIA, which reads:

“The Australian Government has also given clear indications that it will not be mandatory for any person to install or to use the App,

“However, there may be a potential risk of circumstances in which a particular individual does feel pressured to download the App,

“E.g. a supermarket insisting on customers showing that they are using the App before being permitted to enter the store; or an employer insisting that their employees demonstrate that they are using the App before being permitted to start or continue work,” reads the PIA.

The Facebook post has been viewed over 34,000 times, shared over 300 times and received over 100 comments.

Screenshot of Facebook post
┬áA Facebook post claims there are “hidden secret rules” for the COVIDSafe tracing app.┬á

The Analysis

As states and territories recorded decreased levels of coronavirus infections in April, the federal Department of Health released the COVIDSafe app to track potential transmissions of the virus.

The app uses the bluetooth functionality in phones to track contact between users. The app registers when a user is near other people who have the app on their device. If someone contracts COVID-19 they have to consent to the data being used by health officials for contact tracing.

Prime Minister Morrison told radio station 2GB that he wants as many people as possible to download the app and that the sooner Australians download the app, the sooner they can go back to the pub.

The May 3 Facebook post claims the COVIDsafe app “comes with some hidden secret rules” and says supermarkets and employers could potentially refuse entry or work to people who have not installed the app.

The post includes a screenshot of section 3.19.4 of the COVIDSafe app Privacy Impact Assessment (PIA), described above.

The Department of Health engaged law firm Maddocks to conduct the PIA, with the report aiming to “address and mitigate any identified privacy risks for the COVIDSafe app,” according to the Department of Health website.

The concerns raised in the PIA about the COVIDSafe app being used to deny someone entry to their work or a supermarket are directly addressed in the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency RequirementsÔÇöPublic Health Contact Information) Determination 2020.

As part of the Biosecurity Act (2015), the federal Minister for Health can make determinations, that are necessary to prevent the spread of a disease during a biosecurity emergency period. The COVID-19 biosecurity emergency period is in force for three months from its declaration on March 18, 2020.

The minister’s Biosecurity determination, in section 9(1)(a) states that a person “must not require” that another person download the app, have it in operation or consent to their data being shared.

The determination, in section 9 (2)(c), prohibits a person from “refusing to allow another person to enter premises,” if that person has not downloaded the COVIDSafe app, isn’t using the app, or has not consented to uploading their data to the COVIDSafe Data Store.

The determination also prohibits a person from refusing “to enter into, or continue, a contract or arrangement with another person (including a contract of employment)” or taking “adverse action (within the meaning of the Fair Work Act 2009) against another person,” if they have not downloaded the COVIDSafe app, aren’t using the app, or have not consented to uploading their data to the COVIDSafe Data Store.

If someone doesn’t comply with the Biosecurity determination they may be committing a criminal offence, punishable by a maximum of five years in prison. New draft legislation set to be introduced in to parliament will turn the determination into law, outside of the the three-month biosecurity emergency period, by amending the Privacy Act (1988).

The move to introduce the legislation that amends the Privacy Act (1988) comes after experts and politicians expressed concerns about how personal data is collected and stored by the COVIDSafe app.

Chair of the Australian Privacy Foundation and head of UNSW Cyberspace Law and Policy Centre, David Vaile, told AAP FactCheck in an email that there are “still ┬áunresolved issues about the application of this law to entities under state government jurisdiction” . This includes state police forces, hospitals, emergency services and local governments.

In a recent development, the Department of Health is investigating a Sydney council after it reportedly ordered staff to install the COVIDSafe app on their work-issued phones.

Health Minister Greg Hunt said on Wednesday, May 6 that the reported behaviour of the council, if accurate, was unacceptable “and further steps would be taken if it were not rectified immediately”.

Employer group the NSW Chamber of Commerce has expressed disappointment that employers are not allowed to mandate downloading of the app for employees.

COVIDSafe app on iPhone
┬áClaims “hidden” rules will affect those without the COVIDSafe app are not supported by evidence.┬á

The Verdict

Based on the evidence, AAP FactCheck found the claim that there are “hidden secret rules” for the COVIDSafe app is not supported. While experts have identified potential concerns with how the regulations around the COVIDSafe app might apply in some ┬ácircumstances, the wording of the Minister’s Biosecurity determination specifically prohibits someone being barred from entering a premises or participating in an activity based on whether they have installed the app.

False – The primary claim of the content is factually inaccurate.

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