The Australian Government has developed the COVIDSafe app to assist in tracking potential exposure to, and reduce the spread of, COVID-19 within the Australian population during the COVID-19 pandemic period.

The COVIDSafe app works by recording data on mobile devices onto which the app has been downloaded (Relevant Mobile Devices). Based on public statements made by the Government:

  • Recorded data includes unique identifiers for each Relevant Mobile Device which (through using Bluetooth technology) has been in close contact with another Relevant Mobile Device for more than 15 minutes at a time
  • Data stored by the app includes the date, time, distance and duration of the contact, as well as the unique identifiers of the Relevant Mobile Devices from those contacts. It does not record the physical location of Relevant Mobile Devices.
  • Data is encrypted and will be stored securely within Australia
  • Data will only be stored on the app within the Relevant Mobile Device for three weeks at a time
  • If a person with the app on their Relevant Mobile Device tests positive for COVID-19, they will need to actively provide consent for the data stored on their Relevant Mobile Device to be uploaded and provided to their state or territory health department
  • Any data which is uploaded and provided will then be used by state and territory health officials to help alert those close contacts who may need to self-quarantine and be tested for COVID-19.

The Australian Government has indicated the intention of the app is to trace and quickly act to curb community transmission of COVID-19.

A stated benefit of widespread downloading and use of the app by the majority of the population is that existing levels of social and business restrictions imposed by the federal, state and territory governments may be able to be lifted sooner than would otherwise be the case. This would mean a quicker return to normal business operations for many businesses and their employees.

On 25 April 2020, the Australian Minister for Health issued a determination under the Biosecurity Act 2015 (Cth) regarding the COVIDSafe app (Determination). The Determination sets out:

  • The rights and obligations of those who download and use the app
  • Protection of the data stored within the app, and
  • The rights of those who elect not to download or use the app.

Importantly, clause 9 of the Determination states that a person must not require another person to download the app or have the app in operation on a mobile device. Clause 9 is consistent with statements made by the Prime Minister that use of the app is purely on a voluntary basis and will not be imposed on the Australian population – that is, it will not be mandatory.

This means that employers cannot legally direct or require their employees, even those with employer-issued mobile devices, to:

  • Download the app (Download)
  • Ensure the app is operating on their mobile device (Operate), or
  • Consent to uploading data from the app on their mobile device (Consent).

There are additional provisions in the Determination which protect those who do not Download, Operate or Consent, regardless of their reasons for doing so. These protections include prohibiting employers from taking certain action against people (including employees) who do not Download, Operate or Consent. The Determination prohibits, among other actions:

  • An employer from refusing to enter into a contract (including an employment contract) with a person because that person has failed or refused to Download, Operate or Consent
  • An employer from terminating an employee’s contract of employment because the employee has failed or refused to Download, Operate or Consent
  • An employer from taking adverse action[1] against an employee who has failed or refused to Download, Operate or Consent – including prohibitions preventing an employer from reducing an employee’s hours of work, demoting an employee or otherwise detrimentally treating an employee
  • Anyone refusing a person (including an employee) entry to premises or participation in any activity due to that person’s failure or refusal to Download, Operate or Consent
  • Anyone refusing to receive or provide goods or services to another person (including an employee) due to that person’s failure or refusal to Download, Operate or Consent.

The Determination does not prohibit an employer from requesting that its employees Download, Operate or Consent, but care needs to be taken to ensure that this request is not misconstrued as a direction or requirement to do so.

It is worth noting that the Determination is only intended as a temporary means of regulating use of the app and the rights and obligations of those who download it, and it also open to legal challenge as well as amendment by the Minister. It is also important to note that the Explanatory Statement to the issuing of the Determination indicates that any person who breaches the Determination may be guilty of an offence under the Biosecurity Act, which can constitute a criminal offence punishable by fines and imprisonment. Draft legislation has been proposed to provide legislative protection and broadly reflects the Determination. The draft legislation will be considered by the Australian Parliament when it sits later this month.

The above content is commentary rather than legal advice and was prepared on the basis of applicable legislation, government programs and initiatives that were in place as of the date of publication. Given the ongoing evolution of both the COVID-19 pandemic and frequent consequential changes to the various laws and programs within all Australian states and territories, readers should seek legal advice on the current situation as applicable to their specific circumstances before taking any action in relation to the above.